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2015 DIGILAW 271 (HP)

Rajneesh Vasudeva v. State of Himachal Pradesh

2015-03-31

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge The petitioner who is an accused has preferred this Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure against the order of charge framed by the learned Judicial Magistrate, Ist Class, Kandaghat on 25.8.2014, whereby he has been charge sheeted under Sections 353, 332, 506 read with Section 34 IPC in case titled State of H.P. Vs. Rajneesh Vasudeva and another. 2. The facts as emerge out of the records are that an FIR No. 36 of 2012 was got registered by the officials of the Forest Department against the petitioner and other accused under Sections 353, 332, 506 and 34 IPC at Police Station Kandaghat, District Solan, H.P. After investigation, challan was put in the Court of learned Judicial Magistrate, who after taking cognizance in the matter framed charges against the petitioner and other coaccused. 3. Petitioner has challenged this order on the ground that he was neither connected nor involved with the commission of offence nor there was any material available on record, which could connect him with the same. It is further alleged that even if the material on record is taken to be correct on its face value, even then conviction on the basis of such material is impossible. It is also contended that the learned Magistrate had not appreciated that the petitioner had been falsely roped in the present case, which is established by the medical report placed on record, which shows that the accused have been examined on 15.5.2012 at 5.30 P.M, while they have been shown to have been arrived at the hospital much later at 7.10 P.M. on 15.5.2012. It is lastly contended that the learned Magistrate has completely ignored the provisions of Section 227 and 228 of the Code of Criminal Procedure and the order of framing charge has been passed in a highly mechanical manner and therefore, benefit of any reason does not comply with the provisions of law. 4. On the other hand Mr. V.K. Verma, learned Additional Advocate General along with Mr.Rupinder Singh, Additional Advocate General have vehemently argued that there is ample material available on record to connect the petitioner with the offence. It is further argued that at this stage it is only required to be seen is as to whether a prima facie case is established or not. V.K. Verma, learned Additional Advocate General along with Mr.Rupinder Singh, Additional Advocate General have vehemently argued that there is ample material available on record to connect the petitioner with the offence. It is further argued that at this stage it is only required to be seen is as to whether a prima facie case is established or not. The evidence on record is not required to and infact cannot be meticulously examined. I have heard learned counsel for the parties and have gone through the records. 5. Considering the stage at which the criminal proceedings is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations or defence taken by the accused before the Court below or in this Court lest it prejudices one or the other party in future. Having considered in details the allegations set out in the FIR, the statements recorded by the prosecution under Section 161 Cr.P.C and the other material collected by the investigating agency during the course of investigation and which is now available on record, in my considered opinion, the learned Magistrate, committed no error in framing charge against the petitioner. After all at this stage the Magistrate is required to apply his judicial mind only with a view to find out whether a prima facie case has been made out for framing charge. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the prosecution because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not. 6. A three Judges Bench of the Hon’ble Supreme Court in its recent decision in Sonu Gupta Vs. Deepak Gupta and others, JT 2015(2) SC 258 has succinctly dealt with this proposition and summarized the law in the following manner:- “8. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial. 11. In our considered view, the High Court fell into error of evaluating the merits of the defence case and other submissions advanced on behalf of the accused which were not appropriate for consideration at the stage of taking cognizance and issuing summons.” 7. In so far as the other submission of the learned Senior Counsel for the petitioner requiring recording of reasons at the time of framing of charge is concerned, the question is no longer resintegra in view of judgment of Hon’ble Supreme Court in Nupur Talwar Vs. Central Bureau of Investigation and another (2012) 11 SCC 465 , wherein it was held as under:- “11. Undoubtedly, merely for taking cognizance and/or for issuing process, reasons may not be recorded. In Kanti Bhadra Shah vs. State of West Bengal, (2000) 1 SCC 722 , this Court having examined sections 227, 239 and 245 of the Code of Criminal Procedure, concluded, that the provisions of the Code mandate, that at the time of passing an order of discharge in favour of an accused, the provisions referred to above necessitate reasons to be recorded. It was, however, noticed, that there was no such prescribed mandate to record reasons, at the time of framing charges against an accused. 12. It was, however, noticed, that there was no such prescribed mandate to record reasons, at the time of framing charges against an accused. 12. In U.P. Pollution Control Board vs. M/s. Mohan Meakins Ltd. and others, (2000) 3 SCC 745 , the issue whether it was necessary for the trial court to record reasons while issuing process came to be examined again, and this Court held as under:- “2. Though the trial court issued process against the accused at the first instance, they desired the trial court to discharge them without even making their first appearance in the court. When the attempt made for that purpose failed they moved for exemption from appearance in the court. In the meanwhile the Sessions Judge, Lucknow (Shri Prahlad Narain) entertained a revision moved by the accused against the order issuing process to them and, quashed it on the erroneous ground that the magistrate did not pass “a speaking order” for issuing such summons. 3. The Chief Judicial Magistrate, (before whom the complaint was filed) thereafter passed a detailed order on 25.4.1984 and again issued process to the accused. That order was again challenged by the accused in revision before the Sessions Court and the same Sessions Judge (Shri Prahlad Narain) again quashed it by order dated 25.6.1984. * * * 5. We may point out at the very outset that the Sessions Judge was in error for quashing the process at the first round merely on the ground that the Chief Judicial Magistrate had not passed a speaking order. In fact it was contended before the Sessions judge, on behalf of the Board, that there is no legal requirement in Section 204 of the Code of Criminal Procedure (For short the ‘Code’) to record reasons for issuing process. But the said contention was spurned down in the following words: ‘My attention has been drawn to Section 204 of the Code of Criminal Procedure and it has been argued that no reasons for summoning an accused person need be given. I feel that under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions. I feel that under Section 204 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and, if an opinion had to be formed judicially, the only mode of doing so is to find out express reasons for coming to the conclusions. In the impugned order, the learned Magistrate has neither specified any reasons nor has he even formed an opinion much less about there being sufficient ground for not proceeding with the case. 6. In a recent decision of the Supreme Court it has been pointed out that the legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah v. State of W.B., (2000) 1 SCC 722 . The following passage will be apposite in this context: (SCC p. 726, para 12) “12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial.” * * * 12. In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which the Managers or Directors of the company can also be proceeded against, when the company is alleged to be guilty of the offence. In the above context what is to be looked at during the stage of issuing process is whether there are allegations in the complaint by which the Managers or Directors of the company can also be proceeded against, when the company is alleged to be guilty of the offence. Paragraph 12 of the complaint read thus: “That the accused persons from 2 to 11 are Directors/Managers/Partners of M/s. Mohan Meakins Distillery, Daliganj, Lucknow, as mentioned in this complaint are responsible for constructing the proper works and plant for the treatment of their highly polluting trade effluent so as to conform the standard laid down by the Board. Aforesaid accused persons are deliberately avoiding to abide by the provisions of Sections 24 and 26 of the aforesaid Act which are punishable respectively under Sections 43 and 44 of the aforesaid Act, for which not only the company but its Directors, Managers, Secretary and all other responsible officers of the accused company, responsible for the conduct of its business are also liable in accordance with the provision of the Section 47 of the Act.” The appellant has further stated in paragraph 23 of the complaint that “the Chairman, Managing Directors and Directors of the company are the persons responsible for the act and therefore, they are liable to be proceeded against according to the law.” (emphasis supplied) 13. Whether an order passed by a Magistrate issuing process required reasons to be recorded, came to be examined by this Court again, in Dy. Chief Controller of Imports and Exports vs. Roshanlal Agarwal & Ors., (2003) 4 SCC 139 , wherein this Court concluded as below:- (SCC pp. 145-46, para 9) “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. & Ors., (2000) 3 SCC 745 , and after noticing the law laid down in Kanti Bhadra Shah v. State of West Bengal, (2000) 1 SCC 722 , it was held as follows: (Mohan Meakins Ltd. case, (2000) 3 SCC 745 , SCC p. 749, para 6) “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order.” (emphasis supplied) 14. Recently, in Bhushan Kumar and another vs. State (NCT of Delhi) and another (Criminal Appeal no. 612 of 2012, decided on 4.4.2012) the issue in hand was again considered. The observations of this Court recorded therein, are being placed below:- (SCC p. 429, paras 12-14) “12. A summon is a process issued by a Court calling upon a person to appear before a Magistrate. It is used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a response to violation of law. In other words, the summons will announce to the person to whom it is directed that a legal proceeding has been started against that person and the date and time on which the person must appear in Court. A person who is summoned is legally bound to appear before the Court on the given date and time. Willful disobedience is liable to be punished Under Section 174 Indian Penal Code. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. It is a ground for contempt of Court. 13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre-requisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order Under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith.” (emphasis supplied) 15. It is therefore apparent, that an order issuing process, cannot be vitiated merely because of absence of reasons.” 8. At this stage, it is not possible to conclude that the material placed on record is wholly insufficient for the purpose of trial. Rather the same raises strong suspicion against the accused. 9. Law prohibits this Court from examining the case meticulously on its merits, but then suffice it to say that the impugned order reflects the application of judicial mind and therefore, warrants no interference. In view of the aforesaid discussion, there is no merit in this revision and accordingly the same is dismissed, leaving the parties to bear their costs.