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2015 DIGILAW 1855 (ALL)

Zakir Shah v. State of U. P.

2015-07-10

VIJAY LAKSHMI

body2015
JUDGMENT Vijay Lakshmi, J. This revision has been preferred against the judgment and order dated 19.05.2015, passed by learned Chief Judicial Magistrate, Court No. 3, Bareilly in Complaint Case No. 271 of 2013 (Ishrat Ali Vs. Zakir and Others), whereby the application for discharge of the revisionists has been rejected. 2. Heard learned counsel for the revisionists; learned A.G.A. representing the State and perused the record. 3. Learned counsel for the revisionists has submitted that the revisionists have been falsely implicated in this case, in fact no such incident has ever took place and the F.I.R. lodged against them is a counter blast of Case Crime No. 130 of 2012, under Sections 427, 504, 506 I.P.C., which has been instituted from the side of the revisionists against the opposite party no. 2 and two other persons. It has further been submitted that from the perusal of the entire evidence on record it appears that no offence is made out against the revisionists under Sections 323, 452, 504, 506 I.P.C., therefore, learned counsel has prayed that the impugned order dated 19.05.2015, rejecting the discharge application, which has been passed without appreciating the evidence on record, be set aside. 4. Learned A.G.A. has vehemently opposed the aforesaid submissions. 5. The impugned order shows that the court below has discussed in detail in it the prima facie evidence available on record. At the stage of framing a charge only a reasonable doubt in the mind of the court concerned is sufficient and the courts are not required to see whether the evidence available on record is sufficient to prove the case of prosecution beyond reasonable doubt, only prima facie evidence as available on record is to be considered by the court concerned at the initial stage of framing charges. It is only at the stage of trial that the truthfulness, sufficiency and acceptability of the evidence can be adjudged. 6. The Sessions Judge has the power to discharge the accused in the following circumstances; A-where the evidence produced is not sufficient, B- where there is no legal ground for proceeding against the accused, C-where the prosecution is clearly barred by limitation, or D-where he is precluded from proceeding because of a prior judgment of High Court. 7. 6. The Sessions Judge has the power to discharge the accused in the following circumstances; A-where the evidence produced is not sufficient, B- where there is no legal ground for proceeding against the accused, C-where the prosecution is clearly barred by limitation, or D-where he is precluded from proceeding because of a prior judgment of High Court. 7. In State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, the Hon'ble Apex Court has held that at the time of framing charge, what the Trial Court is required to see and consider, are only the Police Papers referred to under Section 173 , Cr.P.C. and documents sent with it. The accused cannot be permitted to produce documents to put forth his defence case for purpose of seeking discharge. 8. In Soma Chakravarty v. State (through CBI); 2007 (2) SCC (Cri) 514, it has been held by the Hon'ble Apex Court that at the time of framing of 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 at that stage. If on the basis of material on record the Court could form an opinion that the accused might have committed the 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. Whether, in fact, the accused committed the offence, can only be decided in the trial. 9. In Omwati v. State; AIR 2001 SC 1507 , it has been held by the Hon'ble Apex Court that the High Court should not interfere at initial stage of framing the charges merely on hypothesis, imagination and farfetched reasons, which in law amount to interdicting the trial against the accused persons. 10. In Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and others; 2009 (1) SCC (Cri) 87, it has been held by the Hon'ble Apex Court that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. 11. Hon'ble Apex Court in Om Prakash Sharma vs. C.B.I. AIR. 11. Hon'ble Apex Court in Om Prakash Sharma vs. C.B.I. AIR. 2000 SC 2335, has held that at the stage of 227 of the Code of Criminal Procedure, it is not open to the Sessions Judge to weigh the pros and cons whether improbability and then proceed to discharge the accused holding the said statements existing in the case diary as unreliable. 12. Hon'ble Apex Court in Niranjan Singh Karan Singh Panjabi vs. Jitendra Bhimarj Bizza AIR 1990 SC 1962 has held that the Court may for limited purpose sift the evidence as it cannot be expected even it 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. 13. It is also settled position of law that at the time of framing charge the accused has no right to produce any material because the expression "record of the cases" in Section 227 Cr.P.C. refers to the material produced by the prosecution and not by the accused. 14. In Kanti Bhadra Shah vs. State of Bengal AIR 2000 SC 522 , Hon'ble Supreme Court has held that the discharge order must contain reasons but an order of framing charge cannot be quashed merely because it does not contain reasons. 15. In State of J & K vs. Sudarshan Khakkar AIR 1995 SC 1954 and in Rukmani Narvekar vs. Vijaya Satardekar, AIR 2009 SC 1013 , it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge, the Court has to confine its attention to documents referred to unde Section 173 Cr.P.C. only. 16. In wake of the aforesaid legal position and considering the facts and circumstances of the present case it will not be proper to truncate or snip the proceedings at the initial stage of framing charge. The impugned order is well in conformity with law and does not suffer from any such error, illegality or irregularity so as to warrant any interference by this Court. The revision appears to have no force and it is liable to be dismissed. 17. The revision is accordingly dismissed. 18. The impugned order is well in conformity with law and does not suffer from any such error, illegality or irregularity so as to warrant any interference by this Court. The revision appears to have no force and it is liable to be dismissed. 17. The revision is accordingly dismissed. 18. At this stage learned counsel for the revisionists prayed that earlier when the revisionists had been summoned by the court below to face trial, they had moved this Court by means of Application No. 983 of 2015 U/s 482 Cr.P.C. in which this Court vide order dated 22.01.2015 had given them interim protection by directing that no coercive measures be adopted against them till disposal of discharge application or for a period of four months, whichever is earlier. Learned counsel prays that some time may be given to the revisionists for surrendering before the court below and the same be directed to dispose of their bail application same day. 19. Considering the facts and circumstances of the case, it is directed that if the revisionists appear before the court concerned within thirty days from today and apply for bail, the same shall be heard and disposed of expeditiously, if possible, on the same day by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 approved by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 20. In case the revisionists fail to surrender within the stipulated period, the court below shall take appropriate action against them.