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Madhya Pradesh High Court · body

2011 DIGILAW 952 (MP)

Jitendra Vajpai v. State of M. P.

2011-08-18

G.D.SAXENA

body2011
ORDER 1. This revision petition under section 397/401 of the Code of Criminal Procedure 1974 preferred by the petitioner/accused is directed against an order dated 17th March 2011 passed in Sessions Case No. 21/2010 by the Special Judge (Dacoity), Bhind (M.P.), framing thereby the charges against the petitioners/accused for commission of offence punishable under section 394 read with section 397 of IPC, in alternative under sections 394 and 450 of IPC read with section 13 of the MPDVPK and in alternative under section 458 of IPC read with section 13 of the MPDVPK Act. 2. The facts in short, just for the decision of this petition are that on 1st January, 2010 at about 21.15 hours at Pustak Bazar Bhind, accused Jitendra Bajpai @ Kallu, Brajendra Bajpai @ Bantu along with two unknown persons went to the shop of complainant Raj Kumar Jain, on motorcycle and in a jeep and asked the complainant to handover vacant possession of the shop and house. When the complainant objected to it, they entered into his shop by breaking the lock open of the shutter and tried to forcibly occupy it. They also took the box kept in the shop having emergency Glass worth Rs. Twenty thousand. It is alleged that there was a civil dispute over the shop between the complainant and the accused and the suit was decreed in favour of accused Brajendra Bajpai against which, the complainant preferred an appeal and moved an application for staying the proceeding of eviction, which is stated to be pending before the civil Court. On the report of the complainant, an FIR was lodged and after investigation the charge-sheet was filed before the Special Court Bhind. In trial, the trial Court framed the charges against the petitioners-accused for commission of offences mentioned above, hence this revision. 3. The contention of the learned counsel for the petitioners is that the impugned order framing charge against the petitioners/accused is not based on the evidence as adduced along with the charge sheet. In trial, the trial Court framed the charges against the petitioners-accused for commission of offences mentioned above, hence this revision. 3. The contention of the learned counsel for the petitioners is that the impugned order framing charge against the petitioners/accused is not based on the evidence as adduced along with the charge sheet. It is submitted that the trial Court has not taken into consideration the fact that against the judgment dated 23rd December 2009 passed in Civil Suit No. 39-Al09 by the Additional District Judge Bhind in favour of accused Brajendra Bajpai and against the perpetual injunction issued in favour of the said accused restraining the complainant not to interfere into his peaceful possession, without legal resources, an appeal was preferred before the appellate Court. Hence, it is requested that by allowing the revision, the petitioners be acquitted of the charges as framed by the trial Court. 4. The learned Panel Lawyer for the respondent/State opposed the prayer _ of the petitioner and prayed for dismissal of the revision. 5. Heard the learned counsel for the parties and also perused the copies of the charge-sheet filed with the revision including applicability of law to the case. 6. On perusal of the FIR, statements recorded by the Investigating Officer vis-av-vis other material gathered during investigaion and produced along with the charge sheet before the trial Court, it appears that prior to the present incident, a civil suit was filed by accued Brajendra Bajpai (Petitioner No.2) against the complainant-defendant and others seeking declaration of title and permanent injunction, which was decreed in favour of the accused and against the complainant. Against the said judgment, the complainant preferred an appeal along with an application for stay. Due to winter vacation in civil Courts, the application was pending for consideration. As per prosecution own version, the accused/petitioners went to the disputed place and tried to obtain possession of the shop which was in possession of the complainant. During investigation, the box of emergency glasses which was forcibly taken from the shop, was seized from the house of accused Jitendra Bajpai, however the alleged two unknown persons and the loading jeep were not traced out, during investigation. 7. It may be seen from the facts of the case that present is a matter essentially of civil nature, which has been given a cloak of criminal offence. 7. It may be seen from the facts of the case that present is a matter essentially of civil nature, which has been given a cloak of criminal offence. Therefore, power has to be exercised very cautiously in order to prevent abuse of the process of Court or otherwise to secure the ends of justice. In the case of lnder Mohan Goswami v. State of Uttaranchal ( AIR 2008 SC 251 ), the apex Court held that the Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. 8. In the case of V.R. Dalal v. Yogendra Naranji Thakka ( AIR 2008 SC 2793 ), the apex Court held "It may be true that in the event the Court finds that the dispute between the parties is civil in nature. it may not allow the criminal proceedings to go on. But, no law in our opinion, as such can be laid down as in a given case both civil suit and criminal complaint would be maintainable although the cause of action for both the proceedings is the same. When a proceeding is found to be an abuse of the process of Court, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India may not allow it to continue. For the said purpose, the fact of the matter can be looked into." 9. On going through the FIR and case-diary statements of complainant and his witnesses, it appears that prior to the incident, a civil suit was filed by accused Brajendra Bajpai (petitioner No.2) against the complainant-defendant and others seeking declaration of title and permanent injunction, which was decided in favour of the accused and against the complainant. Against the said judgment. the complainant preferred an appeal along with an application for stay. Due to winter vacation in the Courts, the application was pending for consideration. It is alleged that the accused/petitioners \vent to the disputed place and tried to dispossess the complainant from a shop which was occupied by him. Against the said judgment. the complainant preferred an appeal along with an application for stay. Due to winter vacation in the Courts, the application was pending for consideration. It is alleged that the accused/petitioners \vent to the disputed place and tried to dispossess the complainant from a shop which was occupied by him. It is true that the discharge of the accused on the ground that the dispute between the parties is of civil nature is not illegal but at the same time it cannot be lost sight off the fact where the allegations prima facie constitute an offence, mere pendency of the civil suit would not preciude the Court from framing charge against the accused. In fact, the trial Court was required to evaluate the material and documents filed with the charge-sheet before it with a view to finding out existence of the ingredients constituting the alleged offence. 10. In the case of P Vajayan v. State of Kerala ( AIR 2010 SC 663 ), the apex Court held :- "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 or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessay for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which parties and the conclusion of the High Court as well as this Court are confined only for disposal of the discharge petition filed by the appellant under section 227 of the Code. It is for the prosecution to establish its charge and the trial Judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." 11. Further in the case of State of M.P v. S.B. lohari ( 2000 (1) JLJ 142 = AIR 2000 SC 665 ), it is observed :- In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. From the above discussion it seems well settled that at the Ss. In such case there would be no sufficient ground for proceeding with the trial. From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documens on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift 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 or the case." 12. On going through the impugned order, this Court has noticed that at the time of framing charge, the trial Court did not consider the material aspect as came out from the charge-sheet and the evidence adduced by the parties, hence this revision is allowed for lilmited purpose. By setting aside the impugned order, the matter is remanded back to the trial Court with a direction that after giving an opportunity to prosecution and defence and considering the charge-sheet and the evidence adduced therewith, the trial Court is at liberty to analyse and arrive at an appropriate conclusion, one way of the other, in accordance with law.