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2018 DIGILAW 3 (MAN)

L. Hemingthang Khongsai v. State of Manipur

2018-02-07

N.KOTISWAR SINGH

body2018
JUDGMENT : N. Kotiswar Singh, J. 1. Heard Mr. N. Mahendra, learned counsel for the petitioner; heard also Mr. Samarjit H., learned Government Advocate for the State. 2. The present petition has been filed under Section 397 Cr.P.C. praying for setting aside the order dated 10.07.2017 passed by the Learned Sessions Judge, Imphal West, Manipur in Sessions Trial Case No. 35 of 2017 being aggrieved by the framing of charge against the petitioner under Section 400 IPC on the ground that no case has been made out for framing charge under the aforesaid Section. 3. The allegation against the petitioner is that he is a member of Kuki Revolutionary Army (KRA), who was arrested on 14.12.2012 from the residence of one Dr. Chandramani Singh of Thangmeiband Hijam Leikai, Imphal while he came to his house to extort a sum of Rs. 1 Lakh on behalf of KRA. The petitioner was also alleged to have delivered to the doctor a small chit in which the name of said Michael of KRA, a Self Styled Commander, Imphal Finance Division and a mobile number was written, which was seized from his possession. 4. On completion of the investigation, the charge-sheet was submitted before the Court mentioned above, and the Court proceeded to frame charge under Section 400 IPC against the petitioner which has been challenged herein. 5. Mr. N. Mahendra, learned counsel for the petitioner submits that the only ground for framing charge against the petitioner is the allegation that the petitioner is a member of the Kuki Revolutionary Army (KRA), who was arrested while demanding a sum of Rs. 1 lakh from a doctor and handing over a chit in which the name of one Michael of KRA along with his mobile number was written, who was stated to be a commander of Kuki Revolutionary Army (KRA). Mr. Mahendra submits that even if it is held correct that the petitioner was found handing over a chit containing the name of one person who was stated to be a commander of Kuki Revolutionary Army (KRA) along with a mobile number, it does not prove that the petitioner is a member of the KRA. He submits that in the present case, it cannot be said that the ingredients for making offence under Section 400 IPC has been made out. According to Mr. He submits that in the present case, it cannot be said that the ingredients for making offence under Section 400 IPC has been made out. According to Mr. N. Mahendra, learned counsel for the petitioner, Section 400 IPC can be attracted only if it is shown that the accused belongs to a gang or dacoits, and it has been provided under Section 391 of the IPC that it is only when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly commit or attempt to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". However, in the present case, only the petitioner was arrested and no other person has been arrested. There is no evidence that there were five or more persons involved in the alleged act of extortion. Therefore, it cannot be said that five or more persons are involved in the alleged attempt to extort money from the aforesaid Dr. Chandramani, and accordingly, the charge of dacoity cannot be framed against the petitioner. 6. Mr. Mahendra, learned counsel for the petitioner submits that as per the prosecution story, as revealed in the charge-sheet filed before the Court, only eight witnesses have been examined in course of the investigation, and by way of material evidence, the small chit and the mobile phone which have been seized at the time of his arrest have been relied upon. He submits that even if the statements made by the witness mentioned above under Section 161 Cr.P.C. are believed, these do not reveal any ingredient for attracting offences under Section 400 IPC. According to him, even if the statements made by the witnesses mentioned above are taken to be true and evidences/materials relied on by the prosecution are also taken into consideration, yet, it cannot be said that the ingredients of Section 400 IPC have been made out. 7. In support of his contention, Mr. According to him, even if the statements made by the witnesses mentioned above are taken to be true and evidences/materials relied on by the prosecution are also taken into consideration, yet, it cannot be said that the ingredients of Section 400 IPC have been made out. 7. In support of his contention, Mr. N. Mahendra, learned counsel for the petitioner has relied on the following decision of the Hon'ble Supreme Court in Dilawar Babu Kurana v. State of Maharashtra, reported in 2002 CrLJ 980 : AIR 2002 SC 564 : (2002) 2 SCC 135 , in which the Hon'ble Supreme Court has held that while considering the question of framing of charge, the Court can shift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out and only where the materials disclose a grave suspicion, which has not been explained, the Court would be justified in framing the charge. It has been submitted that in the present case no such grave suspicion can be said to have been made out on the basis of the materials gathered. 8. To the similar effect, he has relied upon the decisions of the Hon'ble Supreme Court in Suresh v. State of Maharashtra, reported in AIR 2001 SC 1375 ; State of MP v. Mohanlal Soni reported in AIR 2000 SC 2583 : 2000 (6) SCC 338 ; State of Maharashtra v. Priya Sharan Maharaj, reported in AIR 1997 SC 2041 ; Shyam Sunder Sharma v. State, reported in 2002 CrLJ 517 (Delhi); UOI v. Prafulla Kumar Samal and anr., reported in AIR 1979 SC 366 ; P. Vijayan v. State of Kerala and anr, reported in AIR 2010 SC 663 . Mr. Mahendra further relied on the decision in Suresh Chandra Banerjee and Ors. v. King Emperor reported in AIR 1928 Calcutta 309, to contend that the essence of Section 400 IPC is the agreement amongst the group to habitually commit dacoity and participation in the commission of dacoity. However, in the present case, no case material is present to show that the petitioner is habitually involved in dacoity along with others. 9. On the other hand, Mr. However, in the present case, no case material is present to show that the petitioner is habitually involved in dacoity along with others. 9. On the other hand, Mr. Samarjit H., learned Government Advocate has submitted that there are sufficient materials on record as evident from the statements of witnesses, and materials seized from the petitioner to make out the offence under Section 400 IPC. It is not permissible at this stage to contend that the statements of the witnesses are not reliable to upheld the charge of Section 400 IPC. It has been further submitted that at the stage of framing of charge, the exercise of the Court is merely confined to examine as to whether a prima facie case has been made or not against the accused about the commission of the offence or whether the materials disclose a grave suspicion that such crime has been committed, and it will not be permissible for the Court to weigh evidential values of the materials on record during the stage of framing of charge. 10. Heard learned counsel for the parties, considered the materials on record and also perused the impugned order dated 10.07.2017 passed by the learned Sessions Judge, Imphal West. The relevant portions of the impugned judgment read as follows:- "4. I have perused carefully all the materials on record. At the time of framing charge, the Court has to consider as to whether there is prima facie material or grave suspicion against the accused for his involvement to the charge levelled against him. Section 400 IPC deals with punishment for belonging to gang of dacoits and as per section 391 IPC when five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and adding such commission or attempt, amount to five or more, every person so committing, attempting or adding, is said to commit 'dacoity". Further, as per section 390 IPC part two extortion is robbery if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. In the charge sheet, it has been clearly stated that the KRA (Kuki Revolutionary Army) is an armed gang of dacoits involving in extortion of money from general public and Govt. departments. The present accused was caught red handed when he came to demand a sum of Rs. 1 lakh from Dr. Chandramani Singh. During the course of investigation, the I.O. of the case had examined Dr. Chandramani and the guards detained in the house and they have fully corroborated the statements of the complainant about the demanding of money by the accused to Dr. Chandramani and gave a chit written a phone number of one Michael to contact for the said demand money. Situated thus, I come to the conclusion that there is sufficient prima facie evidence or grave suspicion against the accused for being a member of the KRA, a gang of dacoit. Hence, charge under section 400 is framed against the accused. The cases law cited by the ld. counsel is not in a position to help the accused. Announced." 11. From the above, it is evident that that the Court below had considered the materials on record and as regards the charge against the petitioner under Section 400 IPC. The Court has also referred to Section 391 IPC as well as 390 IPC. The Court below also has referred to the prosecution case in which it has been alleged that Kuki Revolutionary Army (KRA) is an armed gang of dacoits involved in extortion of money from the general public and Government Departments and the petitioner was caught red handed when he came to demand a sum of Rs. 1. Lakh from the said Dr. Chandramani Singh. In course of the investigation, the I.O. of the case had examined the said Dr. 1. Lakh from the said Dr. Chandramani Singh. In course of the investigation, the I.O. of the case had examined the said Dr. Chandramani Singh and his wife and the armed guards, who were posted in his house who had corroborated the statement of the said Dr. Chandramani Singh. 12. This Court has also gone through the statements made under Section 161 Cr.P.C. relied upon by the Prosecution, annexed to this petition. If the statements of witnesses relied on by the Prosecution are to be believed as true, these clearly indicate that the petitioner was caught red handed at the residence of one Dr. Chandramani Singh while demanding a sum of Rs. 1 lakh from him. The allegation that he gave a chit to the doctor in which the name of one Michael RGOK/KRA, Imphal Finance Division with a mobile number written, also clearly indicates that the petitioner is in all probability a member of Kuki Revolutionary Army. The statements of Dr. Chandramani and his wife clearly indicate that the petitioner had come to their house and demanded a sum of Rs. 1 lakh in the name of KRA, and when they declined to give the money because of financial problem, the petitioner gave the doctor a chit in which the name of one Michael RGOK/KRA was written along with the mobile number stating that he will come another day. The said chit as well as the mobile have been seized from the petitioner. The other witnesses who also include the armed guards posted at the residence of the said Dr. Chandramani Singh also corroborated the visit of the petitioner in the house and also seizure of the aforesaid chit along with the mobile from the possession of the petitioner from the residence of Dr. Chandramani Singh. 13. Whether the aforesaid evidences are reliable and sufficient to establish the charge against the petitioner are to be considered at the stage of trial. The only consideration before this Court at the stage of framing of charge is whether on the basis of materials gathered by the prosecution and presuming these evidences to be admissible, reliable and correct, the ingredients of the offence are made out or not and a triable case is made out or not. Kuki Revolutionary Army (KRA) is an armed gang operating in Manipur which is known to extort money from the general public. Kuki Revolutionary Army (KRA) is an armed gang operating in Manipur which is known to extort money from the general public. As regards involvement of KRA and association of the petitioner with KRA, without going to the credibility or reliability of the evidences, these are indicated by the chit which the petitioner handed over to Dr. Chandramani Singh. That the petitioner came to extort money from one Dr. Chandramani Singh and that he is also a member of the KRA, is supported by the statement of Dr. Chandramani Singh and his wife. The allegation that he delivered the chit in which the name of one Michael, who is stated to be a commander of the KRA along with mobile number written, indicates that the petitioner is a member of a gang working under a commander. Therefore, it cannot be said that there are no ingredients for constituting the offence under Section 400 IPC disclosed in the present case. 14. The decisions cited by the petitioner on the contrary support the case of the prosecution for framing of charge against the petitioner. 15. It is now well settled that at the stage of charge consideration, the Court is primarily concerned with the issue as to whether there are evidences to show existence of the ingredient of the offence charge. If there are material evidences available, the Court need not look into the reliability or credibility or sufficiency of the evidences to prove the charge. It will be sufficient if the evidences gathered clearly and prima facie show that the offence charged has been committed and there is all likelihood of the conviction of the accused. If the evidences taken together and accepted as admissible and reliable do not make out any case of commission of the offence charged, the Court would be entitled to discharge the accused. In the present case, in the opinion of this Court also, there are sufficient material evidences which prima facie indicate commission of the offence by the petitioner. 16. In this regard, one may refer to the decision in Suresh (supra) which has been also relied upon by the petitioner himself, in which it was held by the Hon'ble Supreme Court that, "9. We do not feel it necessary to repeat the discussions on the different points and the decisions which have been referred to in the judgment. 16. In this regard, one may refer to the decision in Suresh (supra) which has been also relied upon by the petitioner himself, in which it was held by the Hon'ble Supreme Court that, "9. We do not feel it necessary to repeat the discussions on the different points and the decisions which have been referred to in the judgment. However we notice a few recent decisions of this Court touching on the question. In the case of State of Maharashtra v. Priya Sharan Maharaj (1997) 4 SCC 393 : 1997 SCC (Cri) 584 this Court referring to the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya (1990) 4 SCC 76 : 1991 SCC (Cri) 47 held (at SCC p. 397, para 8) that at the stage of Sections 227 and 228 the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as the gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (emphasis supplied) 10. In the case of State of M.P. v. Mohanlal Soni (2000) 6 SCC 338 : 2000 SCC (Cri) 1110 this Court referring to several previous decisions, held (at SCC p. 342, para 7) that the crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. (emphasis supplied)" 17. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. (emphasis supplied)" 17. In fact, what this Court finds is that there are also materials to consider charging the petitioner under Section 511 IPC for committing the offence of attempt to extort which is a punishable offence under Section 384 IPC. There are material evidences to show that there was a clear attempt by the petitioner to extort money from Dr. Chandramani Singh by putting him in fear as the Kuki Revolutionary Army (KRA) is a well known armed organisation operating in the State of Manipur. 18. Accordingly, the trial Court may also consider framing of charge for commission of offences under Section 511 IPC read with Section 384 IPC after hearing the petitioner in exercise of power conferred under Section 216 of Cr.P.C which empowers the Court to alter or add to any charge at any time before judgment is pronounced, after hearing the petitioner. 19. For the reasons discussed above, this Court does not find any merit in the present petition. Accordingly, the same stands dismissed, however, with the direction made in preceding para [18].