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2018 DIGILAW 1302 (RAJ)

Harivallabh v. State of Rajasthan

2018-05-16

P.K. LOHRA

body2018
JUDGMENT P.K. Lohra, J. - By the instant revision petition under Section 397 read with Section 401 Cr.P.C, petitioner has challenged order dated 3rd of February, 2018 passed by Addl. Sessions Judge, Nathdwara, District Rajsamand in Sessions Case No.12/2015 framing charge against him for offence punishable under Section 306 IPC. 2. The facts, in brief, giving rise to this revision petition are that respondent-complainant submitted a written report before SHO, Police Station Nathdwara, District Rajsamand, attributing offence of murder and certain other offences under the Schedule Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'Act of 1989') against Balu Gurjar and Pritesh @ Pintu, and in the FIR there was no whisper much less any allegation of threatening the deceased Anil against petitioner. Police after investigation submitted charge-sheet for offence under Section 306 IPC and Section 3(2)(v) of of the Act of 1989 against petitioner and two others before Addl. Chief Judicial Magistrate Nathdwara and subsequently the case was committed to learned trial Court. 3. Learned trial Court, after hearing arguments on charge, framed charge under Section 306 IPC against accused persons including petitioner. 4. It is submitted by learned counsel that learned trial Court has not at all cared to examine the material available on record for framing charge under Section 306 IPC against petitioner. Learned counsel has further submitted that the FIR itself was lodged after a lapse of one month, wherein name of the petitioner was not mentioned and it is only during investigation, solely on the basis of some embellished version of the witnesses, he is sought to be implicated. It is also argued by learned counsel that while framing charge, Court is required to apply its mind on the basis of material available on record and before proceeding to frame charge, must record its prima facie satisfaction that offence is made out against accused. Further elaborating his submission, it is contended by learned counsel that the impugned order is conspicuously silent on this issue, and therefore, same cannot be sustained. 5. Learned Public Prosecutor has opposed the revision petition in general. 6. Learned counsel, Mr. Chouhan, appearing for the complainant, Mr. Chouhan has very candidly submitted that, in fact, there was no involvement of the petitioner in commission of offence and the complainant has also submitted an application before learned trial Court not to proceed against him. 7. 5. Learned Public Prosecutor has opposed the revision petition in general. 6. Learned counsel, Mr. Chouhan, appearing for the complainant, Mr. Chouhan has very candidly submitted that, in fact, there was no involvement of the petitioner in commission of offence and the complainant has also submitted an application before learned trial Court not to proceed against him. 7. I have considered the submissions made at Bar, perused the impugned order and other materials available on record. 8. Upon examining the impugned order in conjunction with materials available on record, in my opinion, learned trial Court has grossly erred in framing charge against petitioner for offence under Section 306 IPC. While it is true that at the time of framing charge, Court is required to examine, prima facie, case and not to record its satisfaction about the certainty of conviction but then charge is edifice of trial, therefore, Court is expected to examine material available on record. In case, Court comes to the conclusion that no sufficient ground for proceeding against accused exists, it can very well exercise power under Section 227 Cr.P.C to discharge the accused persons. 9. In my opinion, learned trial Court has not at all cared to construe provisions contained under Sections 227 and 228 Cr.P.C harmoniously for arriving at just conclusion. 10. That apart, a very vital fact that complainant himself has submitted a written application showing non-involvement of the petitioner in commission of offence ought not to have been discarded by learned trial Court. In view thereof, impugned order cannot be sustained. 11. Consequently, revision petition is allowed and the impugned order framing charge against petitioner for offence under Section 306 IPC is quashed.It is needless to observe that learned trial Court may proceed with trial against all other accused persons.