Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1232 (JHR)

Naqueeb Khan v. State of Jharkhand

2015-10-06

RAVI NATH VERMA

body2015
Order : Calling in question, the legal validity of the order dated 26.03.2015 passed by the learned Additional Sessions Judge-II, Hazaribagh in S.T. No. 285 of 2008 whereby and whereunder the petition filed by the five petitioners for their discharge under Section 227 of the Code of Criminal Procedure (in short the Code), has been rejected. 2. Bereft of unnecessary details, the facts, which are necessary to be stated, are that on the basis of the statement made by one Anil Kumar Pandey (since deceased) recorded by S.I. of Chauparan P.S. at Primary Health Centre, Chauparan P.S. Case no. 26 of 2001, was instituted on 07.02.2001 under Sections 147, 148, 149, 323, 325, 307, 506/ 379 and other provisions of the Indian Penal Code and also under Section 27 of Arms Act but as the informant died during treatment, Section 302 of I.P.C. was subsequently added vide order dated 08.02.2001, with the allegation that the informant was the Manager-cum- caretaker of Siyarkoni Bungalow and he used to visit the said bungalow in the morning, noon and in the evening and besides one Chowkidar to look after the bungalow, Chhedi Singh, Narayan Pandey and Bablu Pandey were also engaged to take care of other works. On 07.02.2001 at about 9.00 a.m. when the informant alongwith one Gautam Mukherjee reached at the Bungalow, 10 to 15 persons armed with deadly weapon i.e. lathi, iron rod, sword and fire arms trespassed in the bungalow. Among them the informant identified all the five petitioners and claimed to identify other persons also. One of them Rayeesh Khan was holding double barrel gun, other persons Babu Khan, Sahnawaj and Naqueeb were holding sword and other persons were holding lathi and they started abusing the informant. Rayees Khan opened three fires from his gun. Seeing the incidence, Chowkidar anyhow fled away but all other miscreants surrounded the informant and Gautam Mukherjee and assaulted them with an intention to commit their murder. The informant sustained several injuries and Gautam Mukherjee also received injuries. The left leg of the informant was broken down. It is also alleged that Babu Khan threatened them with dire consequence and thereafter they all fled away. The intention of the petitioners was to forcefully grab the said bungalow. The Investigating Officer after due investigation, submitted the charge sheet against the petitioners and other accused persons. The left leg of the informant was broken down. It is also alleged that Babu Khan threatened them with dire consequence and thereafter they all fled away. The intention of the petitioners was to forcefully grab the said bungalow. The Investigating Officer after due investigation, submitted the charge sheet against the petitioners and other accused persons. Subsequently, the investigation was handed over to Crime Investigation Department (C.I.D.) and after completion of investigation, the C.I.D. also found the allegations against the petitioners and other accused persons as true and supported the earlier charge sheet submitted by the police. 3. After commitment of the case when the trial was fixed for framing of charge, a petition under Section 227 of the Code was filed by the present petitioners for their discharge but the court below by the order impugned dated 26.03.2015 dismissed the petition. Hence, this revision. 4. Mr. Tripathi, learned senior counsel while assailing the order impugned as perverse and bad in law seriously contended that even if the entire case of the prosecution and the evidences collected during investigation are accepted on its face value, no offence under Section 302 of the Indian Penal Code is made out against the petitioners rather at best, the offence comes within the purview of Section 304 Part-II of the Indian Penal Code. It was also submitted that as far as the injury reports of the three injured; the informant, who subsequently died during treatment and two other injured persons namely Mohan Ravi Das and Gautam Mukherjee, are concerned, none of the injury was on the vital part of the body and even the main injury of the deceased informant relates to compound fracture of tibia and fibula and other injuries were simple in nature and clearly stipulates that there was no intention of the appellant to commit murder of the deceased. It was also submitted by Mr. Tripathy that in the statement of the witnesses recorded by the local police and during investigation by Crime Investigation Department, there are several contradictions and the said Rayees Khan had claimed himself to be the owner of the bungalow. Hence, the petitioners deserve to be discharged. 5. It was also submitted by Mr. Tripathy that in the statement of the witnesses recorded by the local police and during investigation by Crime Investigation Department, there are several contradictions and the said Rayees Khan had claimed himself to be the owner of the bungalow. Hence, the petitioners deserve to be discharged. 5. Refuting the contentions advanced on behalf of the petitioners, learned counsel representing the State submitted that there is no illegality or irregularity in the order impugned worth interference in the revisional jurisdiction of this Court and at the stage of framing of charge, roving enquiry into the pros and cons of the matter is not at all permissible rather presence of grave suspicion and strong prima facie case are sufficient to frame the charges against the petitioners. It was also submitted that since the informant died during treatment, after lodging the case, the said statement of the informant shall be treated as dying declaration of the deceased. 6. Being quite conscious of the fact that the trial would be at its very threshold and that in this application, this Court is dealing with the limited aspect of the petitioner being charged or being discharged, I would like to examine the scope of Section 227 of the Code. The law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Vs. CBI [ (2010) 9 SCC 368 ] wherein the Hon’ble Court has observed in para 19 as under: “19. It is clear that at the initial stage, if there is 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 presumption of the 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. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” In another judgment State through Inspector of Police Vs. A. Arun Kumar and Anr. [ 2015(1) East Cr. C. 450 (S.C.)], the Hon’ble Supreme Court on consideration of several authorities on the scope of 227 and 228 of the Code have given a complete guidelines, which are reproduced hereinbelow:- (i) “The Judge while considering the question of framing the charges under Section 227 of the Cr PC 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. (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 materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. Or this limited purpose, to 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 or acquittal.” 7. The ratio decided by the Hon’ble Supreme Court in the above two cases clearly stipulates that at the initial stage, if there is strong and grave suspicion for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. Apparently in the instant case, the informant after lodging the case died during treatment and the doctor had found compound fracture in Tibia and Fibula of the deceased and multiple injuries over the whole body of the deceased. During investigation also, the witnesses have all supported and corroborated the allegations. I have gone through the case diary and its supplementary part and specially the statement of the informant and the injuries sustained by the injured persons, which clearly indicates that the deceased had sustained several injuries over the whole body. It is not material at this stage, whether those injuries were merely abrasion and bruises. Mere raising suspicion or doubt over the offences, it would not be permissible to discharge the accused. 8. In a case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the issue of discharge in a complaint case, lodged at the instance of father of a deceased girl wherein he suspects that his daughter had been poisoned, has held in paragraph- 28 as follows:- “28. 8. In a case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the issue of discharge in a complaint case, lodged at the instance of father of a deceased girl wherein he suspects that his daughter had been poisoned, has held in paragraph- 28 as follows:- “28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. “9. From perusal of the allegations made in the F.I.R. and the evidences available on record, there appears to be strong and grave suspicion against the petitioners. This is not the stage to examine where the trial will end in conviction or not but the Court has only to look into the allegations within the framework or guidelines given in the above two cases Sajjan Kumar (supra), State through Inspector of Police (supra) and Rajiv Thapar (supra). The court below has also found sufficient evidences to proceed in the case and rightly rejected the prayer of the petitioners for their discharge. The question raised by the learned senior counsel Mr. The court below has also found sufficient evidences to proceed in the case and rightly rejected the prayer of the petitioners for their discharge. The question raised by the learned senior counsel Mr. Tripathy that at best the offence comes within the ambit of Section 304 Part II of the Indian Penal Code, I am constrained to opine that even if the petitioner are successful in showing some suspicion or doubt, the same cannot be considered at this stage otherwise it would result in giving finality to the accusations without allowing the prosecution to adduce evidences to substantiate the same. Hence, I do not find any illegality or impropriety in the order impugned. 10. The revision application, being devoid of any merit is, accordingly, dismissed. Application dismissed.