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2019 DIGILAW 1785 (HP)

State of H. P. v. Rajender Singh

2019-11-26

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Petitioner-State, being aggrieved and dissatisfied with judgment dated 14.6.2018, passed by the learned Sessions Judge Ghumarwin, District Bilaspur, HP in Criminal Revision No. 3- 10 of 2018, reversing the order dated 5.10.2017 having been passed the learned Chief Judicial Magistrate, whereby charges under Sections 221 and 120-B of IPC came to be framed against the accused Rajinder Kumar and Ramesh Chand (hereinafter referred to as “the accused”), has approached this Court in the instant proceedings filed under Section 482 Cr.PC, praying therein to remand the case back to trial after setting impugned judgment dated 14.6.2018. 2. For having bird’s eye view, necessary facts as emerge from the record are that FIR bearing No. 125 of 2013 came to be registered against the Constable Rajender Singh and HHC Ramesh Chand (accused) for having committed offence punishable under Section 222 of IPC at PS Sadar, District Bilaspur, H.P. Aforesaid FIR came to be registered on the complaint dated 4.6.2013, having been made by in-charge of police station, who alleged that HHC Ramesh Chand and the present petitioner accused constable Rajender Singh No. 44 were entrusted with a duty of producing an under trial prisoner namely Kumar Bahadur (in short the “detenu’ ), who was lodged in Open Air Jail, Bilaspur, before the learned Additional Sessions Judge, Kullu on 4.6.2013 at 10:00 am. However, in the morning of 4.6.2013, the accused telephonically informed the police authorities that other co-accused namely HHC Ramesh Chand on 3.6.2013, had alone taken the detenu from the Open Air Jail, Bilaspur and left for Kullu without waiting for the present petitioner-accused. As per the complainant, the accused also informed that co-accused HHC Ramesh Chand asked him to come directly to Kullu, but when he reached Kullu, HHC Ramesh Chand was not found present there. Subsequently, HHC Ramesh Chand telephonically informed the petitioner-accused that he had handed over the custody of the detenu to the authorities at Kullu Jail. However, fact remains that on the next day, HHC Ramesh Chand telephonically informed the petitioner-accused that the detenu was not in his custody and that he has fled away. Complainant alleged that both HHC Ramesh Chand and Constable Rajender Kumar intentionally omitted to diligently perform their duty, as a consequence of which, detenu escaped from their custody. However, fact remains that on the next day, HHC Ramesh Chand telephonically informed the petitioner-accused that the detenu was not in his custody and that he has fled away. Complainant alleged that both HHC Ramesh Chand and Constable Rajender Kumar intentionally omitted to diligently perform their duty, as a consequence of which, detenu escaped from their custody. On the basis of aforesaid complaint, FIR sought to be quashed in the instant proceedings came to be lodged against the accused. After completion of investigation, police presented challan in the court of CJM, Bilaspur, who being satisfied that prima-facie case exists against the accused proceeded to frame charges under Sections 221 and 120-B IPC against both the accused vide order dated 5.10.2017, to which, they pleaded not guilty and claimed trial. 3. Being aggrieved and dissatisfied with order dated 5.10.2017, passed by the learned CJM framing therein charge against the accused, respondent-accused preferred petition under Section 397 Cr.PC in the Court of learned Additional Sessions judge, Ghumarwin, District Bilaspur, H.P, who vide judgment dated 14.6.2018 set aside the impugned order dated 1.10.2017, as a consequence of which, respondent accused came to be discharged of the offences under Sections 221 and 120-B IPC. In the aforesaid background, petitioner-State has approached this Court in the instant proceedings, praying therein to remand the case back to the learned court below after setting aside the impugned discharge order passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur. 4. I have heard the learned counsel for the parties and gone through records of the case. 5. There cannot be any quarrel with the proposition of law that at the time of framing the charge, the court is not required to evaluate the evidence on record, but it is also well settled that while framing charge, court is not merely supposed to act as post office and charge the accused on the basis of charge sheet presented before it. 6. Hon’ble Apex Court as well as this court in catena of judgments have held that it is salutary duty of the court to sift the material brought before it along with charge sheet so as to infer prima-facie case, if any, against the accused. 6. Hon’ble Apex Court as well as this court in catena of judgments have held that it is salutary duty of the court to sift the material brought before it along with charge sheet so as to infer prima-facie case, if any, against the accused. At this stage it would be apt to take note of judgment passed by this Court in case titled Varun Bhardwaj v. State of H.P, Cr.Revision No. 268 of 2016 dated 25.4.2017, which has been otherwise taken note of by the court below. Relevant para of the aforesaid judgment is reproduced herein below: “20. This Court after carefully examining the document made available on record by the Investigating Agency sees substantial force in the argument having been made by the learned counsel for the petitioner that there is/was no material much less substantial available on record to frame charge under Section 307 of the IPC. Similarly, perusal of impugned order passed by the Court below reproduced herein above, nowhere suggests that court below before proceeding to frame charge under Section 228 of the Cr.PC against the accused carefully sifted/perused the material made available on record to ensure/ascertain whether prima-facie case exists against the accused or not? The Hon’ble Apex Court in L. Krishna Reddy’s case supra, has specifically held that while framing charge under Section 228 Cr.PC, court must keep in mind the interest of the person arraigned as an accused, who may be put to the ordeals of trial on the basis of flippant and vague evidence. In the instant case, perusal of impugned order nowhere suggests that learned trial Court while proceeding to frame charge made an endeavor to sift/peruse the material adduced on record by the Investigating Agency. There appears to be no application of mind by the learned court below while charging under Section 307 Cr.PC. The Hon’ble Apex Court further held that once a case is presented to it by the prosecution, it is bounden duty of Court to sift through the material to ascertain whether a prima-facie case has been established or not. But even if otherwise, ratio as laid down by the Hon’ble Apex Court in other cases cited above are also taken into consideration, it clearly emerge from the same that in all probabilities, learned court below while framing charge is required to ascertain whether prima-facie case exists or not. But even if otherwise, ratio as laid down by the Hon’ble Apex Court in other cases cited above are also taken into consideration, it clearly emerge from the same that in all probabilities, learned court below while framing charge is required to ascertain whether prima-facie case exists or not. Needles to say exercise, if any, carried out by the Court while ascertaining whether prima-facie case, if any, exists against the accused or not, must reflect in order, whereby charge is proposed to be framed. But in the instant case, as has been discussed in detail, there appears to be no attempt, if any, made by the learned trial Court to ascertain whether prima-facie case exists against the accused at the time of framing of charge or not and as such, impugned order is not sustainable being totally contrary to the law laid down by the Hon’ble Apex Court in the judgment referred herein above. 21. True, it is jurisdiction of this Court under Section 397 of the Cr.PC is very limited but same can be exercised so as to examine the correctness, illegality or proprietary of order passed by the trial Court or inferior court as the case may be. The legality, proprietary or correctness of an order passed by an inferior court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. In the judgments referred herein above, the Hon’ble Apex Court has held that jurisdiction vested in this Court in terms of Section 397 Cr.PC can be exercised to the fact that there is a palpable error, non-compliance with the provision of law or where decision is completely erroneous or where the judicial discretion is exercised arbitrarily. 22. Hence, in the instant case, for the reasons stated above, this Court sees substantial reason to exercise its revisionary power to correct impugned order, which on the face of it is not based upon the principles as have been laid down in the judgments recorded by the Apex Court while discussing scope of power of Court to frame charge under Section 228 of the Cr.PC. In the Vineet Kumar’s case supra, the Hon’ble Supreme Court has held that Court cannot permit prosecution to go on if the case falls in one of the categories as enumerated in the case titled State of Haryana and others vs. Bhajan Lal and others, because judicial process is a solemn proceeding and same should not be an instrument of oppression or, needless harassment. This court has no hesitation to conclude after carefully examining the impugned order vis-à-vis , material available on record that learned court below merely acted as a post office, who accepted the charge sheet under Section 173 of the Cr.PC as verbatim without making on effort to ascertain whether prima-facie case exists against the accused or not? Impugned order nowhere reveals that learned court below while passing impugned order made an effort to sift through the material produced before it to conclude whether prima-facie case is made out against the petitioner. Hence, this Court has reason to conclude that great prejudice has been caused to the petitioner.” In the aforesaid judgment, this Court having taken note of the judgment rendered by the Hon’ble Apex Court in L. Krishna Reddy v. State by Station House Officer and Ors (2014) 14 SCC 401 , has categorically held that while framing charge under Section 228 Cr.PC, court must keep in mind the interest of the person arraigned as an accused, who may be put to the ordeals of trial on the basis of flippant and vague evidence. This Court in the aforesaid judgment has further held that once a case is presented to the learned trial Court by the prosecution, it is bounden duty of Court to sift through the material to ascertain whether a prima-facie case is made out or not. 7. In case titled Prashant Bharti v. State (NCT of Delhi), (2013) 9 SCC 309 , the Hon’ble Apex Court has held that at the stage of framing charge in exercise of jurisdiction under Sections 227 and 228 of the Cr.PC, courts are required to consider the record of the case and the documents submitted therewith and thereafter, may either discharge the accused or where it appears to the court that there is a ground for presuming that the accused has committed offence, it shall frame the charge. 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. No doubt, it has been repeatedly held by the Hon’ble Apex Court that at the stage of framing charge, court needs not undertake an elaborate enquiry while sifting and weighing the material, but court needs to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime or not? 8. Precisely, the case of the prosecution against the petitioner is that Constable Rajender and HHC Ramesh Chand intentionally made the detenu to escape from the custody, but careful perusal of charge sheet as well as material annexed therewith clearly reveals that detenu was sent by the jail warden in the custody of co-accused HHC Ramesh Chand alone. It also emerges from the record that factum of custody of detenu having been handed over to HHC Ramesh Chand stands duly admitted by the Jail Warden Naresh Kumar, which fact otherwise stands duly mentioned in the charge sheet. There is no evidence worth the name available on record suggestive of the fact that respondent-accused took the custody of the detenu, rather it is specific case of the prosecution that custody of detenu was handed over to HHC Ramesh Chand. No doubt, material available on record reveals that duty was also assigned to the respondent-accused to accompany HHC Ramesh Chand for taking the detenu to Kullu, but as has been noticed herein above, the detenu was taken out of the jail by HHC Ramesh Chand without associating the respondent-accused. Material available on record clearly reveals that respondent accused immediately informed the authorities that HHC Ramesh alone has taken the custody of the detenu from the Open Air Jail, Bilaspur and he has not been associated. Similarly, it clearly emerges from the charge sheet itself that respondent accused after coming to know that HHC Ramesh Chand has alone taken the detenu to Kullu contacted him telephonically, who informed that he has handed over the detenu to the Jail authorities at Kullu. It is also not in dispute that subsequently, HHC Ramesh had himself informed telephonically to the respondentaccused that accused detenu has fled away from his custody. It is also not in dispute that subsequently, HHC Ramesh had himself informed telephonically to the respondentaccused that accused detenu has fled away from his custody. No doubt, respondent-accused was to accompany HHC Ramesh Chand to take the detenu to Kullu, but Jail warden before handing over the custody of detenu never ensured the presence of the respondent-accused, rather he has categorically admitted that custody of detenu was handed over to HHC Ramesh Chand. Omission, if any, on the part of the respondent-accused to come present at the time of handing over of the detenu to the HHC Ramesh Chand can be at best said to be dereliction of duty, but definitely in the facts and circumstances, no criminal case is made out against him. 9. Moreover, no evidence worth the name with regard to conspiracy, if any, ever came to be hatched inter-se respondent-accused and co-accused HHC Ramesh Chand is available on record. It is not understood that how charge under Section 120-B could be framed against the respondent accused, who has otherwise successfully proved on record that neither custody of detenu was ever handed over to him nor he was present with HHC Ramesh Chand, from whose custody, the detenu escaped. There is no iota of evidence that the respondent accused was involved in the offence alleged against him, rather evidence available on record itself suggests that respondent-accused had not played any role in the entire episode. 10. As has been observed herein above, that it is bounden duty of the court to at least verify the complaint and sift the evidence available on record to ascertain prima-facie case, if any, against the accused and as such, there is no force in the argument of Sh. Kunal Thakur, learned Deputy Advocate General that learned Sessions Judge while setting aside framing of charge passed by the learned trial Court has exceeded his jurisdiction. 11. Kunal Thakur, learned Deputy Advocate General that learned Sessions Judge while setting aside framing of charge passed by the learned trial Court has exceeded his jurisdiction. 11. Hon’ble Apex court in case titled Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460 has held that in a case where upon consideration of the record of the case and documents submitted alongwith the same, court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the code or any other law for the time being in force and there is a bar and there exists no ground to proceed against the accused, the court may discharge the accused. Careful perusal of material available on record clearly reveals that there is no legal evidence worth framing of charge against the accused and as such, no fault, if any can be found with the impugned judgment dated 14.6.2018, passed by the learned Sessions judge, discharging the respondent accused 12. Consequently, in view of the detailed discussion made herein above as well as law relied upon, this Court sees no illegality and infirmity in the impugned judgment dated 14.6.2018, passed by the learned Additional Sessions Judge, Ghumarwin, District Bilaspur and as such, same is upheld. Accordingly, the present petition is dismissed being devoid of any merits.