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2012 DIGILAW 372 (ALL)

Rekha Mishra v. State of U. P. and Another

2012-02-09

SHRI NARAYAN SHUKLA

body2012
Shri Narayan Shukla, J.;- Heard Mr. Arvind Kumar along with Mr. Vijai Kumar Rai, learned counsel for the petitioner as well as Mr. Rajendra Kumar Dwivedi, learned Additional Government Advocate. 2. The petitioner has challenged the judgment and order dated 25.11.2011 passed by the Additional Special Judge (Gangster Act), Lucknow in Case No. 65-A of 2005 arising out of Case Crime No. 26 of 2005, Police Station Kotwali Dehat, district Hardoi. The main ground of challenge is that to constitute the offence committed by the petitioner under Section 120-B of Indian Penal Code, no ingredients of Section 120-B IPC are available. 3. The learned counsel for the petitioner submits that the investigation report does not indicate any meeting of petitioner's mind to commit the offence. Thus the conspiracy on part of the petitioner in commission of offence alleged is not established. Moreso, the arms which are said to have been used in commission of offence have not been examined, despite production of the same by the petitioner before the Investigating Officer. In support of his submission he cited the following decisions:- 1. Ranjitsing Brahmajeetsing Sharma Vs State of Maharashtra and another reported in AIR 2005 SC 2277 , 2. Saju Vs State of Kerala AIR reported in 2001 SC 175, 3. State of Kerala Vs P.Sugathan and another reported in AIR 2000 SC 3323 , 4. Sukhram Vs State of Maharashtra reported in AIR 2007 SC 3050 . 4. So far as the order impugned passed by the Court below in exercise of power provided under Section 227 of Code of Criminal Procedure is concerned, it is stated that once the Investigation Report does not establish any offence committed by the petitioner, it is not necessary to compel the petitioner to undergo trial. the petitioner has also challenged the finding recorded by the learned Court below with the submission that as soon as she received notice issued by the District Magistrate to provide those arms for examination, immediately she provided those arms without committing any delay, but till filing of the police report they had not been examined and until and unless arms are examined those cannot be connected with the offence, therefore, the charge-sheet filed against the petitioner for commission of offence under Section 147, 148, 149, 307, 302 and 120-B of the Indian Penal Code is wholly baseless and unfounded. It is further stated that the statement of witnesses recorded during the course of investigation do not connect the petitioner with the offence and those are also not corroborated with other evidences therefore, those are no evidence in the eye of law against the petitioner. In support of his submission he cited following decisions:- 1. Union of India Vs Prafulla Kumar Samal and another reported in AIR 1979 366, 2.Niranjan Singh Karam Singh Punjabi Advocate Vs Jitendra Bhimraj Bijja and others reported in AIR 1990 SC 1962 , 3. P. Vijayan Vs State of Kerala and Another reported in AIR 2010 SC 663 , 4. State of Bihar Vs Ramesh Singh reported in AIR 1977 SC 2018 , 5. Alamohan Das and others Vs The State of West Bengal reported in AIR 1970 SC 863 , 6. State of Karnataka Vs L. Muniswamy and others reported in AIR 1977 SC 1489 , 7. State of Madhya Pradesh Vs Mohan Lal Soni reported in AIR 2000 SC 2583 , 8. Vijayan alias Rajan VS State of kerala AIR reported in 1999 SC 1086, 9. Sanjeev Kumar etc. Vs State of Himachal Pradesh AIR reported in 1999 SC 782, 10. Shyam Singh and others Vs State of U.P. and another reported in 2010 (71) ACC 654, 11. Naresh Vs State of U.P. and Another passed by this court, on 26.8.2011 in Criminal Revision No. 512 of 2010. 5. This Court had an occasion to deal with the same question who has involved in the present case. 6. In the case of Munna Lal Gupta Vs State of U.P. and another reported in 2009(66) ACC 66 this Court has held that at the stage of consideration of discharge application under Section 227 of the Code of Criminal Procedure, the learned Magistrate/Judge has to satisfy himself on the point as to whether there is sufficient ground for proceeding against accused or not without proceeding for any roving enquiry as the same is impossible at this stage as has been held by Hon'ble Supreme Court in the case of State of Orissa Vs Devendra Kumar Padhi reported in 2005 (Vol 1) SCC 568. 7. At the stage of passing the order under Section 227 of the Code of Criminal Procedure, the Court has merely to peruse the evidence in order to find out whether or not there is sufficient ground for preceding against the accused. 7. At the stage of passing the order under Section 227 of the Code of Criminal Procedure, the Court has merely to peruse the evidence in order to find out whether or not there is sufficient ground for preceding against the accused. If upon consideration the Court is satisfied that the prima-facie case is made out against the accused, the judge must proceed to frame Charge in terms of Section 228 of the Cr.P.C. If there is strong suspicion, which leads the Court to think that there is ground for presumption that accused has committed offence, it is not open to the Court to say there is no sufficient ground for proceeding against the accused. 8. Section 227 of Criminal Procedure provides that upon consideration of record of the case and the documents submitted there at and after hearing the submission of the accused and the prosecution in this behalf, if the Judge considers that there is no sufficient ground for proceeding against accused, he shall discharge the accused and record his reason for doing so. At this stage, only material collected during the course of investigation becomes available for the Judge for consideration of grounds for proceeding against the accused. 9. In the case of State of Bihar Vs Ramesh Singh 1997 (Vol. 4) SCC 39, the Hon'ble Supreme Court held that it is not obligatory for the Judge at the stage of trial to consider any delay and weigh in sensitive balance that the notice if proved would be incompatible with the innocence of the accused or not but at the initial stage, if there is strong suspicion which leads the Court to think that there is ground for prosecuting the accused then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. 10. Learned Additional Government Advocate drew attention of this Court towards one more judgment rendered by this Court in the case of Ramesh Chandra Maurya Vs State of U.P. and others reported in 2011(730 ACC 826, in which this Court held that at the stage of framing charge the defence of accused cannot be put forth. 11. 10. Learned Additional Government Advocate drew attention of this Court towards one more judgment rendered by this Court in the case of Ramesh Chandra Maurya Vs State of U.P. and others reported in 2011(730 ACC 826, in which this Court held that at the stage of framing charge the defence of accused cannot be put forth. 11. Upon perusal of the order impugned as well as Copy of the Case Diary produced by the petitioner before me, I find that the arms which are said to be involved in commission of offence, were under the petitioner's custody on the date of commission of offence which, primafacie, establishes the petitioner's agreement in commission of offence, though the petitioner's role in commission of offence has to be determined finally on the basis of evidence adduced by the parties before the trial court but the petitioner's custody of arms on the date of offence leads a suspicion of his involvement through her act or omission in commission of offence. Therefore, at this stage, I find sufficient material against petitioner to proceed for framing of charges. Under the circumstances, I am of the view that the learned Special Judge has not committed error in rejecting petitioner's application dated 12.9.2011 for discharge . 12. In the aforesaid terms revision stands dismissed.