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2008 DIGILAW 522 (JK)

Shamser Singh v. State

2008-12-31

VINOD KUMAR GUPTA

body2008
1. The petitioner-accused has filed this revision petition against the order dated 15.01.2008, passed by the learned Additional Session Judge, Jammu in file No. 39/challan of 2007, whereby charges under section 302 RPC and 30 Arms Act have been framed against the petitioner or in the alternative treating the petition under section 561-A Cr.P.C. for quashing the proceedings against the petitioner-accused in the above mentioned case under section 302 RPC and 30 Arms Act. 2. The prosecution case is that Police Station, Gangyal received an information through reliable source on 04.06.2007 that two parties are having inimical relations between each other regarding a plot of land and on that day at 9 A.M at Purmandal Morh on the National Highway, the complainant party armed with Tokas stopped the Alto Car of the accused and attacked upon him with `Tokas. The accused-petitioner Shamsher Singh fired two shots from his revolver which hit Vijay Kumar who died on spot. The Shamsher Singh ran away in car No. JK02A-2300 and the dead body was lying on spot. On this information, FIR No.38/2007 under Sections 302 RPC, 3/25 Arms Act was registered with Police Station, Gangyal and investigation started. After completion of the investigation, a chargesheet under Sections 302 RPC 3/25 Arms Act was presented before learned Chief Judicial Magistrate, Jammu on 25th July 2007, who committed the case to the court of Sessions Judge and the case was transferred to Additional Sessions Judge, Jammu. 3. After going through the evidence and other material collected by the investigating agency during investigation, the learned Additional Sessions Judge, Jammu found that a prima facie case for commission of offences under Sections 302 RPC, 30 Indian Arms Act was made out against the accused-petitioner and thereby framed charges for these offences against the petitioner-accused on 15.01.2008. 4. The petitioner being aggrieved by this order, has challenged the impugned order of learned Additional Sessions Judge Jammu on the ground that no offence is made out under Sections 302 RPC. 5. I have heard the learned counsel for the parties and have considered the record on the file. 6. Mr.Sunil Sethi, learned counsel for the petitioner, has contended that the prosecution story as depicted in the challan (chargesheet) shows that the complainant party attacked upon the accused-petitioner and the petitioner-accused in his defence fired shot from the revolver which hit the deceased and died on spot. 6. Mr.Sunil Sethi, learned counsel for the petitioner, has contended that the prosecution story as depicted in the challan (chargesheet) shows that the complainant party attacked upon the accused-petitioner and the petitioner-accused in his defence fired shot from the revolver which hit the deceased and died on spot. The petitioner-accused had apprehended danger to his life because of the attack by the deceased, as such the petitioner validly exercised his right of private defence of body. Thus no offence is made out under Section 302 RPC. He has further submitted in alternate that in case any offence is made out that is under Section 304 RPC. 7. Mr. P.C.Sharma, Additional Advocate General, on the other hand, has submitted that no revision lies against the order of framing charges under Section 435 (4) and the whole matter is based on facts which can be considered after completion of the evidence in the case. He has further submitted that the charge can be amended or altered at any stage by the trial court in case evidence recorded in Court suggests so. 8. The first plea raised by the learned Additional Advocate General is that no revision lies against the framing of the charge. Sub-Section 4(a) of the Section 435 of Code of Criminal procedure bars the power of the revision conferred upon the court in relation to any interlocutory order passed in any proceedings. The maintainability of the revision petition depends upon the question as to whether the impugned order is an interlocutory order or final order. In a case where a charge has been framed against the accused which is not made out from the evidence collected by the prosecution during investigation is a final order and cannot be said to be an interlocutory order. 9. Without giving any finding as to whether a revision in such cases lies or not, the present petition is also maintainable because the petitioner-accused has also made an alternate prayer in the petition under Section 561-A Code of Criminal Procedure for quashing the impugned order. 10. 9. Without giving any finding as to whether a revision in such cases lies or not, the present petition is also maintainable because the petitioner-accused has also made an alternate prayer in the petition under Section 561-A Code of Criminal Procedure for quashing the impugned order. 10. At the stage of framing charge, the Magistrate or Sessions Judge has to see as to whether prima facie in case is made out for the commission of the offence from the evidence and material collected during investigation or in other words, the evidence collected during the investigation by the investigating agency, if it remains unrebutted, warrants the conviction of the accused in the case. No inquiry in detail is required to be made and the evidence so collected cannot be sifted. In case Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others, AIR 1980 Supreme Court 52, the Honble Supreme Court of India in para-18 observed as under:- "It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar V. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of 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 of the Code of Criminal Procedure, 1973. 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 the charge against the accused in respect of the commission of that offence." 11. Further in State of Orrisa Vs. Dabendera Nath, 2004 AIR SCW 6813, Honble Apex Court has held as under:- "Further, at the stage of framing charge roving and fishing enquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. Further in State of Orrisa Vs. Dabendera Nath, 2004 AIR SCW 6813, Honble Apex Court has held as under:- "Further, at the stage of framing charge roving and fishing enquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence cannot be put forth." 12. From the above it emerges that at the time of framing of the charge no roving or detailed enquiry is required and it is to be seen as to whether prima facie case is made out or not. The Honble Apex Court in case Munna Devi Vs. State of Rajhasthan and another, (2001) 9 SCC 631 while discussing the scope of revisional powers of the High Court in such case is held as under:- "The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has not authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." 13. I have perused the order passed by the learned Additional Sessions Judge Jammu and he has considered the matter on the facts of the case and has also examined the matter placed before it under Section 173 Code of Criminal Procedure. The learned Additional Sessions Judge has on application of the relevant case law on the issue to the facts of the case found that prima facie there was evidence pointing involvement of the petitioner-accused in the commission of offence. The learned Sessions Judge has observed as under:- "8. In the present case, there are two set of witnesses, the first set stating that accused Shamsher Singh fired in self defence and the other set stating that accused Shamsher deliberately fired with his revolver at Vijay Kumar and thereby murdered him. The learned Sessions Judge has observed as under:- "8. In the present case, there are two set of witnesses, the first set stating that accused Shamsher Singh fired in self defence and the other set stating that accused Shamsher deliberately fired with his revolver at Vijay Kumar and thereby murdered him. No doubt, the said eyewitnesses namely Vijay Paul and Sheelo Devi, related to deceased Vijay Kumar failed to point out the spot of occurrence but this by itself, at this stage, cannot be taken as a ground to discharge the accused. On perusal of the material on record, I am of the view that prima facie offence u/s 302 RPC/ 30 Arms Act is made out against accused Shamsher Singh. He is accordingly charge-sheeted for the said offences. The charge-sheet has been read over and explained to accused. He has denied his guilt and claims trial." 14. The perusal of the impugned order in this petition it is clear that the learned Additional Sessions Judge has applied his mind to the facts of the present case based on material placed before him under Section 173 Code of Criminal Procedure. There are two sets of evidence out of which one set suggesting that the accused has committed the offence of murder and the other set suggesting that the accused-petitioner fired in self defence. In the circumstances, the learned Additional Sessions Judge was right in taking the view of framing charge under Section 302 RPC. In the charge-sheet i.e, final report under section 173 Code of Criminal Procedure, the story is given otherwise about the conclusion ignoring the evidence of Viay Paul and Sheelo Devi. 15. In view of above, I feel that the impugned order does not require any interference at this stage and the learned Additional Sessions Judge, Jammu has properly exercised his jurisdiction in framing charge against the accused as stated above. It is a settled position of law the charge can be altered at any stage subsequent to the framing of the charge and the accused-petitioner is at liberty to move an application for the same in case the prosecution evidence recorded in the court suggests so at any stage. 16. In the circumstances, I do not find any illegality or irregularity in the order impugned and accordingly, the present petition is dismissed along with connected Cr.M.P(s), if any.