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2011 DIGILAW 906 (GAU)

Col. Kulwant Singh v. CBI

2011-11-18

UJJAL BHUYAN

body2011
JUDGMENT Ujjal Bhuyan, J. 1. By this application under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), the petitioner has challenged the legality and validity of the judgment and order dated 16.6.2011 passed by the Additional District and Sessions Judge, No. 1, Aizawl District in Criminal Revision Petition No. 264 of 2010 directing the Chief Judicial Magistrate, Kolasib to frame the charge against the petitioner. The prosecution case in brief is that one Chhungrothanga, then resident of Vairengte, District Kolasib. Mizoram had submitted a complaint before the National Human Rights Commission (NHRC) alleging that the petitioner while posted in the counter insurgency and Jungle Warfare School. Vairengte in the year 2000 had taken his son Shillongthanga aged about 12 years from the Vairengte to Chandigarh to work as domestic help with the promise of paying him Rs. 500 per month and getting him recruited in the Indian Army after attaining adulthood. However, the father neither received the promised amount nor heard of his son thereafter. On receipt of the complaint, the NHRC forwarded it to the Ministry of Defence, Govt. of India with a direction to submit action taken report within 4(four) weeks. The Ministry of Defence informed the NHRC on 10.4.2003 that the petitioner, who was then posted as Administrative Officer, NCC at Ghaziabad, Uttar Pradesh, had denied any role in the missing of Shillongthanga. The Defence Ministry, therefore, recommended handing over of the case to Mizoram police. The NHRC sent a copy of the Defence Ministry's report to the father Sri Chhungrothanga. 2. The father then submitted another complaint before the Child Welfare Committee, Aizawl. On 21.2.2006 a news report was published in the English daily newspaper "The Telegraph" under the caption "Mystery over missing boys". The Hon'ble Chief Justice of this Court took note of this news report and this Court suo moto took up the matter on the judicial side by registering a case i.e. W.P(C) (Taken up) No. 1153 of 2006. It was then that the Mizoram police obtained the complaint from the father, on the basis of which Vairengte PS Case No. 15 of 2006 under Section365 / 418 IPC was registered. The Mizoram police found that the investigation of this case was spread over several other places outside the State of Mizoram such as Delhi and Chandigarh and, therefore, the Govt. The Mizoram police found that the investigation of this case was spread over several other places outside the State of Mizoram such as Delhi and Chandigarh and, therefore, the Govt. of Mizoram requested the Central Government to direct the Central Bureau of Investigation (CBI) to take over the investigation of the case. The Government of India in the Ministry of Personnel, Public Grievances & Pension (Department of Personnel & Training) thereafter issued a notification dated 6.9.2007 under Section 5(1) read with Section 6 of the Delhi Special Police Establishment Act, 1946. By the said notification, the Central Government with the consent of the State Government of Mizoram extended the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Mizoram for investigation of the Vairengte PS Case No. 15 of 2006 under Section 365 / 418 IPC. Thereafter, the CBI registered an FIR bearing No. 0007(s)/2007 dated 28.9.2007 under Section 370 and 374 IPC. After completing the investigation, the CBI filed the charge-sheet being Charge-sheet No. 2 in RC7(S)/2007/CBI/SCR-I/ New Delhi in the Court of Judicial Magistrate. First Class, Kolasib, Mizoram. The petitioner was charge-sheeted as the accused person under Sections 370 and 374IPC. 3. By order dated 4.9.2009, the learned Judicial Magistrate, First Class, Kolasib framed charge under Sections 370 and 374 IPC against the petitioner. The petitioner challenged the said order dated 4.9.2009 before this court in Criminal Revision Petition No. 6 of 2009. This Court found that the learned Judicial Magistrate who framed the charge had participated in the investigation of the case and had stood identified as one of the witnesses for the prosecution. Opining that the framing of charge by the learned trial Judge, who had participated during the investigation by recording the statements of witnesses and who has been cited as one of the prosecution witnesses, had caused failure of justice, this Court vide the order dated 20.1.2010 set aside and quashed the order dated 4.9.2009 and remitted the matter to the learned District Judge, Aizawl for taking necessary steps for proceeding with the matter by some other Magistrate from the stage of consideration of the charge. 4. 4. Thereafter, the case was handed over to another Judicial Magistrate, First Class, Kolasib, who by order dated 9.7.2010 observed that no prima facie case under Sections 370 and 374 IPC has been made out against the accused and accordingly discharged the accused. 5. Aggrieved by the aforesaid, the CBI filed the revision petition in the Court of the learned District and Sessions Judge, Aizawl. The said petition was registered as Criminal Revision Petition No. 264 of 2010. The leaned Addl. District and Sessions Judge, No. 1, Aizawl vide the judgment and order dated 16.6.2011 allowed the said revision petition and passed the following order: On hearing the submissions of both sides and on perusal of the case record of the learned Magistrate, I am of the opinion that there is a sufficient ground for proceeding against the accused and the impugned order is set aside accordingly. The learned Magistrate is under suspension and the case record shall be returned to the learned CJM, Kolasib with a direction to frame the charge against the accused and dispose of the case on merit. It is against this order that the petitioner is before this court. 6. I have heard Mr. Michael Zothankhuma, learned Sr. counsel assisted by Mr. Lalfakawma, learned counsel appearing for the petitioner. I have also heard Mr. A.H. Barbhuiya, learned counsel appearing for the CBI. 7. In terms of the order of this Court dated 26.9.2011. Mr. Barbhuiya has produced the relevant case diary before the court during the course of the hearing. 8. Mr. Micheal Zothankhuma, learned Sr. counsel submits that the impugned order dated 16.6.2011 is devoid of any reason. Referring to the provision of Section 354 Cr.P.C., he submits that the order passed by the learned Addl. District and Sessions Judge is not an order in the eye of law. Forcefully presenting the case of the petitioner, he submits that it is a case of no evidence. He particularly asserts that there is no material at all to justify framing of charge against the petitioner under Section 370 IPC. Asserting that grave prejudice will be caused to the petitioner in the event he is forced to face the criminal trial, the learned Sr. counsel submits that the present case is a fit one for invoking the inherent powers of this court under Section 482 Cr.P.C. by setting aside the order impugned. Asserting that grave prejudice will be caused to the petitioner in the event he is forced to face the criminal trial, the learned Sr. counsel submits that the present case is a fit one for invoking the inherent powers of this court under Section 482 Cr.P.C. by setting aside the order impugned. In support of his submissions, Mr. Zothankhuma relies on the following decisions: 1. Avinash J. Mahale and Ors. v. State of Maharashtra. 2006 Crl.L.J. 3123 (Bom.). 2. P. Vijayan v. State of Kerala and Another. (2010) 2 SCC 398 . 3. (Store of M.P. v. Mohanlal Soni. (2000) 6 SCC 338 . 4. Krishnan and another v. Krishnaveni and Another4, and (1997) 4 SCC 241 . 5. Kailash Verma v. Punjab State Civil Supplies Corporation and another. (2005) 2 SCC 571 . 9. Resisting the submissions made on behalf of the petitioner, the learned counsel for the CBI submits that there are sufficient materials to justify framing of charge against petitioner and to proceed with the trial. He refers to the various statements made by the witnesses before the Judicial Magistrate, Kolasib and submits that a clear prima facie case for trial is made out against the petitioner. In support of his submissions he refers to the following decisions: 1. State of Gujarat and another v. Hon'ble High Court of Gujarat. AIR 1998 SC 3164 . 2. State of M. P. v. Sumitrabai & Ors. 2006 Crl. L.J. 3245 (M.P). 3. Sajjan Kumar v. Central Bureau of Investigation and (2010) 9 SCC 368 . 2000 Crl. L.J. 746. 4. Kanti Bhandra Shah and another v. State of West Bengal. 10. The rival contentions of the contesting parties have received the due and anxious consideration of the Court. I have perused the materials on record including the relevant case diary produced by the learned counsel for the CBI I have also carefully considered the various decisions cited at the Bar. 11. Before considering the rival claims of the parties, it would be useful to refer to the relevant legal provisions. Though we are not concerned with the merit of the charge, yet for the sake of convenience we may refer to the 2(two) sections in respect of which the petitioner has been charge-sheeted. 11. Before considering the rival claims of the parties, it would be useful to refer to the relevant legal provisions. Though we are not concerned with the merit of the charge, yet for the sake of convenience we may refer to the 2(two) sections in respect of which the petitioner has been charge-sheeted. Section 370 IPC deals with buying or disposing of any person as a slave while Section 374 IPC on the other hand deals with unlawful compulsory labour. 12. Regarding framing of charge, there are two sets of provisions in the CrPC. While Sections 227and 228 deal with discharge and framing of charge before a Court of Session, Sections 239 and240 on the other hand provides for discharge and framing of charge by a Magistrate, From a reading of the aforesaid provisions, it is quite clear that only in the case of discharge, both under Sections 227 and 239, reasons are to be recorded. But in the case of framing of charge, there is no such requirement. Under Section 228, if after consideration of the record of the case and after hearing the submissions of the accused and the prosecution, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame a charge in writing against the accused. The charge so framed shall be read over and explained to the accused, who shall then be asked whether he pleads guilty of the offence charged or claims to be tried. As per Section 240, the Magistrate, if upon consideration of the police report and the documents sent with it and after hearing both the prosecution and accused, is of the opinion that there is ground for presuming that the accused has committed an offence, he shall frame in writing a charge against the accused. Noticing the difference in the case of discharge and in the case of framing of charge, the Apex Court in the case of Kanti Bhandra Shah (supra) pointed out that if the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. The Apex Court further noted that framing of charge itself is prima facie indicative of the fact that the trial Judge has formed an opinion upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. The Apex Court further held as follows: 10. It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. 13. In the recent case of Sajjan Kumar v. Central Bureau of Investigation (supra), the Apex Court has summarized the core principles governing framing of charge, which is quoted hereunder: 21. On consideration of the authorities about the scope of Sections 227and 228 of the Code, the following principles enlarge: (i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record. the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (iv) If on the basis of the material on record. the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply Its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that 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. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction of acquittal. Proceeding further, the Apex Court held that if at the initial stage 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. The Apex Court held that the presumption of guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not and that at the stage of framing of charge, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability etc. 14. Having noticed the broad principles as indicated above, let us now examine the present case. To satisfy myself, I have perused the case diary produced by the CBI. 14. Having noticed the broad principles as indicated above, let us now examine the present case. To satisfy myself, I have perused the case diary produced by the CBI. I have gone through the statements referred to by the CBI counsel in his submission as well as the statement of the petitioner recorded on 11.2.2008. According to me, without elaborating on the details, it can be safely concluded that there are materials on the basis of which the learned Court below rightly came to the conclusion that there is sufficient ground for proceeding against the accused. I am satisfied that the materials on record justify framing of charge against the petitioner. Regarding the contention of the petitioner that the order impugned is not a reasoned one and is not in conformity with the provisions of Section 354 Cr.P.C., I am unable to accept the said submission inasmuch as no such reason is required to be given as has been held by the Apex Court. Regarding Section 354, it deals with a judgment which is referable to Section 353. The judgment referred to in Section 353 is a judgment delivered at the end of the trial and not at the time of framing charge. The said submission of the petitioner is wholly misconceived. Regarding interference by this court under Section 482 Cr.P.C., I am of the considered opinion that the present is not a case where the inherent power of this Court should be invoked. For all the aforesaid reasons, I see no merit in this petition. Accordingly, the same is dismissed. The order dated 16.5.2011 passed by the Addl. District and Sessions Judge, Aizawl in Criminal Revision Petition No. 264 of 2010 is hereby upheld. No. cost.