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2017 DIGILAW 742 (ALL)

SURENDRA PAL SINGH v. STATE OF U. P.

2017-03-09

AMAR SINGH CHAUHAN

body2017
JUDGMENT : Amar Singh Chauhan, J. 1. Revisionist Surendra Pal Singh has preferred this criminal revision against the judgment and order dated 16.3.2010, passed by Additional Session Judge, Court No. 2, Agra in Case Crime No. 364 of 2007 (S.T. No. 293 of 2009), State vs. Surendra Pal, under sections 323/34, 324/34, 307/34, 506 IPC, Police Station Sikandra, District Agra whereby the charges were framed against the revisionist in the aforesaid sections. 2. The facts which are necessary for adjudication of this revision are that the First Information Report was lodged by the respondent no. 2, Smt. Asha Parihar with the allegation that the marriage of informant was solemnized with Harvir Singh according to Hindu rites and rituals on 01.12.2002. In the marriage, the father of the informant spent Rs. 11,50,000/- in cash and also given furniture, jewellery and cloths but the husband and in-laws were not satisfied and used to harass and did marpeet by raising demand of luxury car. It was further alleged by the informant that pressure was made upon her for aborting a female child. Anyhow she gave a female child issue but husband and in-laws refused to live with her. On 11.4.2007 at 12.00 P.M. (noon) when she was in father's house the husband and in-laws namely S.P. Singh (father-in-law, Smt Urmila (mother-in-law) came and her husband Harvir Singh fired and her father-in-law putting dhata on mouth and armed with lathi caused injury to her. The mother-in-law caught her neck by rope with the help of revisionist. Harvir Singh caused injury by knife also. She identified the revisionist when dhata got opened during marpeet. 3. The Investigating Officer after concluding the investigation submitted the charge sheet only against the revisionist Surendra Pal Singh (father-in-law) in the above mentioned sections. Rests were exonerated as their complicity in the crime were not prima facie found proved. After taking cognizance the case was committed to the sessions court where the charges are framed in the above mentioned sections against the revisionist. 4. Being aggrieved and dissatisfied by the order of the trial Court, the revisionist filed this revision questioning the order dated 16.3.2010 whereby the charges were framed against the revisionist. 5. Heard learned counsel for the revisionist, learned AGA for the State and Sri A.B.L. Gour, senior counsel assisted by Sri Saurabh Gour and perused the record. 6. 4. Being aggrieved and dissatisfied by the order of the trial Court, the revisionist filed this revision questioning the order dated 16.3.2010 whereby the charges were framed against the revisionist. 5. Heard learned counsel for the revisionist, learned AGA for the State and Sri A.B.L. Gour, senior counsel assisted by Sri Saurabh Gour and perused the record. 6. It is submitted by learned counsel for the accused-revisionist that opposite party no. 2 Smt. Asha Parihar was said to be medically examined on 11.4.2007 and on her body red bruises and one incised wound measuring 2 cm. x 0.5cm x skin to muscle deep on left side back upper part were found but no grievous injury was found on the person of the informant. It is alleged that incised wound caused by Harvir Singjh and revisionist caused injuries by lathi. In the statement of Amit Kumar only Harvir Singh opened fired which did not hit to anybody. Participation of other two co-accused persons namely Harvir Singh and Smt. Urmila was found false and only charge sheet was submitted against the revisionist. It is further submitted that no offence is made out against the revisionist. 7. On the other hand, learned counsel for the informant contended that only against the revisionist, the Investigating Officer filed charge sheet and after taking cognizance, the Trial Court framed the charges vide order dated 16.3.2010, which is under challenge, in which there is no illegality in framing the charges against the accused-revisionist. It is further contended that the husband of the opposite party no. 2 did not pay any money in lieu of maintenance and the court allowed the maintenance of Rs. 5100/- per month. The court further directed the Station House Officer of the police Station Sikandra to deliver possession to live in the aforesaid house. The opposite party no. 2 took possession of the house with the help of police. As soon as police personnels left the place after handing over the possession of the house to Smt. Asha Parihar, the revisionist, his wife, son and other persons reached there. They assaulted and caused injuries to Asha Parihar. 8. Before adverting the claim of the parties, it is relevant to quote sections 227 and 228 of the Code of Criminal Procedure, which are reproduced as under: Discharge. "227. They assaulted and caused injuries to Asha Parihar. 8. Before adverting the claim of the parties, it is relevant to quote sections 227 and 228 of the Code of Criminal Procedure, which are reproduced as under: Discharge. "227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Framing of charge. “228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which:- (a) is not exclusively triable by the court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried." 9. Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460 . The Hon'ble Supreme Court held as under: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. The Hon'ble Supreme Court held as under: "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. 19. At the initial stage of framing of a charge, the court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage." 10. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage." 10. In the instant case, the Trial Court framed charges under section 307 IPC read with section 34 as under:- prqFkZ & ;g dh mijksDr fnukad] le; o LFkku ij vkius vU; lkfFk;ksa ds lkFk feydj okfM;k Jherh vk'kk ifjgkj dks tku ls ekjus dh fu;r ls vkids lkFkh gjohj flag us dV~Vs ls Qk;j fd;kA ;fn vkids mDr d`R; ls Jherh vk'kk ifjgkj dh e`R;q gks tkrh rks vki gR;k ds nks"kh gksrs vkSj bl izdkj vkius Hkkjrh; naM lafgrk dh /kkjk 307@34 ds vUrxZr naMuh; vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA 11. Which shows that trial court did not apply the mind because the complicity of the accused Harvir Singh in the crime was found false and I.O. did not submit the charge sheet against Harvir Singh. Even then the Trial Court with the help of section 34 IPC framed the charge-sheet against the revisionist. If there is no legal evidence then framing of charge would be groundless and compelling the accused to face trial is contrary to the procedure offending Article 21 of the Constitution of India which safeguard the right and liberty of the citizen. 12. The accused can be discharged only when there is no sufficient ground for proceeding against him. In case of Yogesh Joshi vs. State of Maharashtra, AIR 2008 SC 2991 , the Apex Court held that the words “not sufficient ground for proceeding against the accused” appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. 13. In case of Kaushal Kishore Singh vs. State of Jharkhand, 2007 Cr. 13. In case of Kaushal Kishore Singh vs. State of Jharkhand, 2007 Cr. L.J. (NOC) 423 wherein a case registered under sections 307, 148, 149 IPC and section 27 of the Arms Act, no person had received injuries from the fire alleged to be fired from the fire-arms of the petitioners, fired cartridges recovered from the spot had not been fired from the fire-arms of the petitioners, the report of the forensic report stated that no shot had been fired from the firearm of the petitioners, held the petitioners were entitled to be discharged. 14. In the instant case, neither any cartridge was recovered nor firearm injury was caused to the informant. Besides this, the complicity of the accused Harvir Singh who fired on the informant, was found false by the I.O. At the stage of framing the charges, the court has to see whether the material brought on record would reasonably connect with the crime. Meaning thereby sufficiency of materials have been looked into and probative value of the material cannot be gone into and order of discharge would be warranted only in those cases where the court is satisfied that there is no chance of conviction of an accused and the trial court would be an exercise in futility. In the present case, the charge framed by the trial court is only basis of the fire made by the associates of the accused namely Harvir Singh but the complicity of the Harvir Singh was found false. Therefore, it cannot be said that there is a sufficient material against the revisionist to frame charges under section 307 IPC. In the same parlance, the trial court wrongly framed charges under section 324 IPC against the revisionist whereas knife injury was said to have been caused by Harvir Singh but Harvir Singh was exonerated by the Investing Officer. 15. Having considered the submissions of the parties, legality, propriety and correctness of the order, I am of the view that impugned order is not justified by which the charges under sections 307, 324 IPC were framed and is not liable to be sustained against the revisionist. 16. The revision is partly allowed. 17. In view of the above discussion, the Trial court is directed to pass an order of discharging the revisionist under sections 324, 307 IPC and proceed to conclude the trial under rest of the charges. 16. The revision is partly allowed. 17. In view of the above discussion, the Trial court is directed to pass an order of discharging the revisionist under sections 324, 307 IPC and proceed to conclude the trial under rest of the charges. There is no order for cost. ——————