Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2312 (ALL)

NEERAJ KUMAR SINGH @ BABLU v. STATE OF U. P.

2014-08-04

RANJANA PANDYA

body2014
Hon'ble Mrs. Ranjana Pandya,J. This revision has been preferred against the order dated 3.7.2014 passed by the Additional Sessions Judge, Varanasi in S.T. No. 87 of 2014 dismissing the discharge application of the applicants under Section 227 Cr.P.C. Brief facts are that the revisionist lodged a report against the opposite party and others in which opposite party no. 2 was in jail. From jail the opposite party no. 2 moved an application under Section 156(3) Cr.P.C. against which, after investigation, final report was submitted. The opposite party no. 2 filed a protest petition against the final report and the court below was pleased to summon the accused persons. It has been argued that the court could not have summoned the accused under Section 307 I.P.C. as this is only a counter-blast and there was no injury. I have heard learned counsel for the revisionist, the learned A.G.A. and the learned counsel for the opposite party no. 2. It is very vehemently argued that the application under Section 156 (3) Cr.P.C. moved by the opposite party no. 2 was not moved through the Jailor and, thus, the whole proceedings have become illegal. I do not agree with the argument advanced on behalf of the revisionist because no such procedure has been laid down subject to some procedure as prescribed in the jail manual. It has further been argued that in initial order the accused was only summoned under Sections 323, 504, 506, 427 I.P.C., therefore, while deciding the discharge application moved by the revisionist, the court could not have summoned the accused under Section 307, 452 I.P.C. also. In this regard, counsel for the revisionist has placed reliance upon the decision rendered in the case of Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and others, (2012) Law Suit (SC) 777, in which it has been held that in exercising jurisdiction under Section 227 of the Code, the court cannot act merely as a post office or a mouth-piece 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 and any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a fishing inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial. This, however, does not mean that the Judge should make a fishing inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting the trial. Counsel for the revisionists has also placed reliance on a decision rendered in the case of P Vijayan Vs. State of Kerala, 2010 Law Suit (SC) 35. Paragraph 14 of the Judgment rendered in the said case reads as under:- "In a recent decision, in the case of Soma Chakravarty vs. State through CBI, 2007 5 SCC 403 , this Court has held that the settled legal position is that if on the basis of 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. 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. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge." While relying on decision rendered in the case of Jasvinder Saini a and others Vs. State (Govt of NCT of Delhi) reported in 2013 Law Suit (SC) 559, counsel for the revisionist has argued that the court can alter the charges at any stage but in this case the State has not come, hence, the Court had erred in adding Sections 304 and 452 I.P.C. for framing charges against the accused. Perusal of the order impugned shows that the learned lower court found that the revisionists came armed with fire arms and fired at the wife of the complainant, who received firearm injuries on her hand. Perusal of the order impugned shows that the learned lower court found that the revisionists came armed with fire arms and fired at the wife of the complainant, who received firearm injuries on her hand. This is supported by the medical evidence and the court has opined that there is sufficient evidence to this effect. While dismissing the discharge application and the objections on the final report being the protest petition, the court had every right to see under which sections the charges had to be framed. Counsel for the opposite party no. 2 has placed reliance upon the decision renderned in the case of State of Gujarat Vs. Girish Radhakishan Varde, 2014 (84) ACC 387, in which it has been held that if there is non-inclusion of all sections relating to which allegations is made in the F.I.R. then the same is permissible by the trial court alone and it is open for the prosecution to contend before the trial court at the stage of framing a charge that prosecution be allowed to frame charge on given state of facts, and appropriate stage would be the time of framing the charge. Counsel for the opposite party no. 2 has also placed reliance upon the decision rendered in the case of State of Tamil Nadu Vs. N. Suresh Rajan and others, 2014 (84) SCC 356, in which the matter of Sheoraj Singh Ahlawat and others (supra) referred by the revisionist has also been discussed. In paragraph 20 of the said decision, it has been held as under:- "20. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the Court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the Court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the Court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the Court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi)." In view of the above discussions, it is clear that the order of the trial Judge does not suffer from any illegality, irregularity or impropriety and, thus, needs no interference by this Court. The writ petition is dismissed at the admission stage. ——————