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Madhya Pradesh High Court · body

2016 DIGILAW 122 (MP)

Kamlesh v. State of M. P.

2016-02-16

A.M.KHANWILKAR, SANJAY YADAV

body2016
ORDER 1. Heard counsel for the parties on admission. 2. This petition is for discharge or if we may say so for quashing of charges framed by the trial Court against the petitioner. 3. The first argument of the petitioner is that the statement of the prosecution witnesses have been recorded within two days after registration of FIR. Secondly, the trial Court is proceeding on presumption. Thirdly, section 498A of IPC cannot be invoked in respect of acts of commission and omission after death of the person concerned. It is also submitted that the statement under section 161 of CrPC recorded is a stereo-type statement. It was argued that the Magistrate has not complied with the procedure prescribed in section 176 of the CrPC. 4. Taking the first argument, we find no merits in this grievance. The fact that statement has been recorded within two days from the date of registration of FIR, by itself cannot be the basis to quash the charges framed by the trial Court. Charges are framed on the basis of material collected during investigation and brought on record before the concerned Court and not on the basis of one singular statement. In any case, whether that statement is credible or otherwise is a matter for trial and cannot be the basis to quash the charges. 5. The next argument of the petitioner that the trial Court is proceeding on presumption, in our opinion, to say the least, is preposterous. The trial Court has just framed the charges. After recording of entire evidence and trial is complete, the trial Court would express its mind in the judgment to be rendered at the end of the trial. No specific instance has been pointed out to us to even remotely substantiate the argument that the trial Court Judge is proceeding on presumption. If the evidence, which is recorded is in respect of offence, such as, 304B and 498A of IPC, as per the provisions of the Evidence Act, certain presumptions are inevitable, though the said presumption may be rebuttable. The petitioner during the trial must take precaution to bring that evidence to effectively rebut those presumptions as his defence in the trial. Hence, even this argument does not commend to us. 6. The next argument of the petitioner that section 498A of IPC cannot be applied is also pre mature. The petitioner during the trial must take precaution to bring that evidence to effectively rebut those presumptions as his defence in the trial. Hence, even this argument does not commend to us. 6. The next argument of the petitioner that section 498A of IPC cannot be applied is also pre mature. That argument, at best, can be pursued after the trial is completed and would become available depending on the evidence which has come on record. The argument proceeds that section 498A of IPC has no application to acts of commission and omission after the death of person concerned. Except this general argument, nothing is brought to our notice to take a view that the charge has been framed against the petitioner on the basis of instances or evidence regarding acts of commission and omission after the death of the victim. On the other hand, it is possible to suggest that even that evidence may be relevant evidence to bring home the guilt against the petitioner in the context of charge, as framed. All those are matters to be considered by the trial Court at the appropriate stage. 7. The next argument of the petitioner is about statement recorded under section 161 CrPC. We are not convinced even with this argument – that the statement so recorded is stereo-type. Assuming that the statement is stereo-type, the petitioner is free to question the credentials of the person making that statement or for that matter person, who has recorded that statement including about the contents of the statement during the trial. The evidence as would come on record may be relevant to answer the contention about the efficacy of such statement. Hence, even this argument does not take the matter any further. 8. That leaves us with the last argument of the petitioner of failure to comply with the requirement of section 176 of CrPC. This argument, in our opinion, is completely ill-advised. Section 176 has nothing to do with the charge, as as framed; and for which petition has been filed. Procedure under section 176 is in respect of inquiry by the Magistrate. In the present case, investigation has been done by the police on the basis of FIR registered under section 154 of CrPC. Section 176 has nothing to do with the charge, as as framed; and for which petition has been filed. Procedure under section 176 is in respect of inquiry by the Magistrate. In the present case, investigation has been done by the police on the basis of FIR registered under section 154 of CrPC. In any case, this argument cannot be the basis to quash the charges already framed against the petitioner nor any deficiencies in that procedure can be the basis to hold that entire trial is vitiated against the petitioner. 9. Hence, this petition fails and is dismissed.