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2016 DIGILAW 407 (MP)

Trivendra Choubey v. State of M. P.

2016-05-13

SUBHASH KAKADE

body2016
ORDER 1. This revision under section 397/401 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’ for short) has been filed against the order dated 10.3.2014, passed by learned Additional Sessions Judge, Bhopal, in Sessions Trial No.361/13 framing the charge against the applicant for the offences punishable under section 120B of IPC. 2. Brief facts of the case are that co-accused Juber Khan, Mukesh Kanojiya and Rajendra Chandawad prepared the bogus transfer orders and used the computer which was in possession of the applicant Trivendra Choubey, hence against him and above named 03 accused persons offence under sections 420, 467, 468 and 471 of IPC was registered. On the basis of statement of co-accused Juber Khan, the applicant has been arrested in the case. After due investigation challan were filed thereafter the learned Sessions Court framed the charged under section 120B of IPC against the present applicant though he has been discharged from the charges under sections 420, 467, 468 and 471 of IPC, hence, this revision. 3. Learned counsel for the applicant submits that after considering the entire collected prosecution evidence, only this fact is against the applicant that he was posted as Computer Operator in the relevant office. It is further submitted that in the FIR, name of the applicant is nowhere mentioned and as per information given by co-accused Juber Khan the applicant is made accused in this case. Learned counsel for the applicant also relied on order dated 21.9.2015 passed by this Court in Criminal No.1788/2014. 4. Learned Panel Lawyer appearing for the respondent-state supported the impugned order and prays for dismissal of this revision. 5. Considering the rival submissions made by learned counsel for the parties and perused the record available as well as the charge-sheet prima facie, well founded case is made out against the applicant and the Court is of opinion that this revision petition deserves to be rejected. 6. The scope of framing of charge was considered and after adverting to various decisions, the apex Court enumerated the following principles: a. That the Judge while considering the question of framing the charges 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. b. 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. c. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. d. That in exercising his jurisdiction the Judge which under the provisions of the Code 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, any basic infirmities appearing in the case and so on. e. The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of section 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon material before the Court, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence is lawful. f. The Judge shall discharge the accused when he considers that there is no sufficient ground for proceeding against him. The ‘sufficient ground’ in the context is not a ground for conviction, but a ground for putting the accused on trial. At this stage, the Judge is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if un-rebutted make a conviction reasonably possible. If the evidence of the prosecution cannot show that the accused committed the offence, the accused should be discharged. 7. From the perusal of the prosecution evidence, prima facie, it is found that at relevant point of time applicant was posted as Constable in the office of SCRB, Police Headquarter, Bhopal. If the evidence of the prosecution cannot show that the accused committed the offence, the accused should be discharged. 7. From the perusal of the prosecution evidence, prima facie, it is found that at relevant point of time applicant was posted as Constable in the office of SCRB, Police Headquarter, Bhopal. It is also case of the prosecution gainst the applicant that he was instrumental to prepare forged transfer office orders on the computer which was in his possession in official capacity and same official computer was seized from his possession. Therefore, it could not be said that prima facie evidence is not available against the applicant. 8. In the above facts and circumstances, there is no need to sift and weigh or appreciate the prosecution evidence as well as defence available to the applicant and come to the conclusion that prima facie no case is made out nor could be exercised to stifle a legitimate prosecution. It is a settled legal proposition that in a case where there is sufficient evidence against the accused which may establish the charge against him/her, the proceeding cannot be quashed [S. Khushboo v Kanniammal (2010)5 SCC 600 ]. 9. In view of aforesaid I find no force in this revision, therefore, the same is dismissed.