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2018 DIGILAW 1596 (RAJ)

Arif Khan v. State of Rajasthan

2018-07-30

MANOJ KUMAR GARG

body2018
JUDGMENT Manoj Kumar Garg, J. - Instant criminal revision petition has been filed by the petitioner against the order dated 15.2.2018 passed by the learned Additional Sessions Judge, Deedwana, Distt. Nagaur in Sessions Case No. 13/2016 whereby, the Trial Court has framed charges against the petitioners for offences under Sections 302, 427,147, 323 in alternative 323/149 I.P.C. 2. Brief facts of the case are that on 8.12.2015, Abdul Rauf filed a written complaint before the Police Station, Ladnu stating therein that at about 9-9.30 P.M., he alongwith his uncle Mustkim Qureshi were going from house towards Railway Station. It is stated that Arif Khan was making a breaker in Gali No. 1. Some more people also gathered there. When people started removing the breaker, the petitioner took keys from the bike and while using abusive language, snatched the gold chain, gold bracelet and money. Thereafter, petitioner Arif Khan inflicted barchi blow on his uncle Mustkim's head due to which his uncle fell down. Someone inflicted lathi blow on the complainant also. Other accused persons who were 7-8 in number attacked his brother with barchi, swords, lathi and knives and ray away. 3. The police registered a case for the offence under Sections 307, 427, 382, 323, 143 I.P.C. Thereafter, challan was presented before the police. During the course of trial, Mustkim Qureshi expired and the Trial Court framed charges against the present petitioner for offences under Sections 302, 427, 147, 323 in alternate 323/149 I.P.C. Hence, this revision petition. 4. Learned Counsel for the petitioner argued that the occurrence took place on 8.12.2015 and the deceased expired on 18.12.2017 i.e. after a period of two years and now the Trial Court has framed charges against the petitioner by adding offence under Section 302 I.P.C. which is not at all made out. It is argued that the offence does not travel beyond offence under Section 304 I.P.C. He placed reliance on the judgment in the case of Pyare Lai & Ors. It is argued that the offence does not travel beyond offence under Section 304 I.P.C. He placed reliance on the judgment in the case of Pyare Lai & Ors. v. State of Rajasthan reported in 2011 (2) Cr.L.R. (Raj.) 1605 and case of Dilawar Balu Kurane v. State of Maharashtra reported in 2002 Cr.L.R. (SC) 118 in which the Courts held that while acting under sections 227 and 228 Cr.P.C., 1973 the Judge while considering the question of framing the charges cannot act merely as a post office or a mouthpiece of the prosecution but has to weigh the evidence impartially for the purpose of finding out whether or not a prima facie case against the accused is made out. Therefore, the impugned order dated 15.2.2018 passed by the Court below framing charges against the petitioner is liable to be quashed and set aside. 5. Per contra, learned Public Prosecutor argued that the deceased after receiving the injury on his head went into coma and till his death he was in a state of coma. The complainant informant Abdul Rauf in his statement has clearly stated that head injury was caused by present petitioner Mohd. Arif. Further as per postmortem report also, it is evident that the deceased had received head injury and cause of death is mentioned as Bronchopneuomonia as a result of prolonged coma due to head injury which corroborates the story of prosecution. Learned Trial Court also while framing charges has discussed all the evidence and material on record, therefore, the revision petition may kindly be dismissed. 6. I have considered the rival arguments and perused the material available on record. 7. Upon perusal of the F.I.R. filed on the same day of incident, it is clear that the complainant Abdul Rauf who is also an eye-witness has categorically mentioned that the present petitioner inflicted barchi blow on the head of deceased and he fell down. It is also evident from the record that the deceased was operated but his condition did not improve and he went into deep coma and ultimately died on 18.12.2017. Thus, prima facie, the Court may presume that the petitioner was responsible for death of deceased Mustkim Qureshi. It is also evident from the record that the deceased was operated but his condition did not improve and he went into deep coma and ultimately died on 18.12.2017. Thus, prima facie, the Court may presume that the petitioner was responsible for death of deceased Mustkim Qureshi. As far as the argument of learned Counsel for the petitioner is concerned, the offence does not travel beyond Section 304 I.P.C., the same is subject matter of trial and it cannot be decided at the stage of framing of charge. Recently, Hon'ble Apex Court in the case of State of Rajasthan v. Fatehkaran Mehdu reported in AIR 2017 SC 796 while discussing the scope of interference and exercise of jurisdiction under Section 397 Cr.P.C., 1973 has held as under: "26. The scope of interference and exercise of jurisdiction under section 397 of Cr.P.C., 1973 has been time and again explained by this Court. Further, the scope of interference under Section 397 Cr.P.C., 1973 at a stage, when charge had been framed, is also well settled. At the stage of framing of a charge, the Court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with scheme of Code of Criminal Procedure. 27. Now, reverting to the limit of the scope of jurisdiction under Section 397 Cr. P.C., 1973 which vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. 28. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding. 28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander and another, (2012) 9 SCC 460 , where scope of Section 397 Cr. P.C., 1973 have been succinctly considered and explained. Paras 12 and 13 are as follows: "12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior Court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a wellfounded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits." "13. Another well accepted norm is that the revisional jurisdiction of the higher Court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it Should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in * accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C." 29. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C." 29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction under Section 397 particularly m context of quashing of charge framed under Section 228 Cr.P.C., 1973 Paras 27, 27(1), (2), (3), (9), (13) are extracted as follows: "27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the Courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.9) Another very significant caution that the Courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice. 27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie." 30. Applying the above tests, we are of the considered opinion that High Court erred in quashing the charges framed by the order dated 5.5.2009. In result, both the appeals are allowed. The order of the High Court is set aside and the order dated 5.5.2009 is restored. The learned Special Judge may proceed with the trial in accordance with the law expeditiously." 8. In the present case, the learned Trial Court has recorded cogent reasons for framing charges and it is settled law that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At this stage, the Court is not expected to go deep into the probative value of the record. What needs to be considered is whether there is a ground for presuming that the offence has been committed or not. At this stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, would justify the framing of the charge against the accused in respect of the commission of that offence. At this stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, would justify the framing of the charge against the accused in respect of the commission of that offence. 9. In view of above, this Court is of the opinion that Trial Court has not committed any error in framing charge for offence under Sections 302, 427,147, 323 in alternative 323/149 I.P.C. 10. The revision thus being bereft of any force, is hereby rejected.