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2020 DIGILAW 258 (MP)

Santosh Usarethe v. State Of Madhya Pradesh.

2020-02-17

SUBODH ABHYANKAR

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JUDGMENT 1. This criminal revision under Sections 397/401 of the Code of Criminal Procedure, 1973 has been preferred by the applicant challenging the order dated 5.3.2018 passed in ST No.253/2018 by the 8th Additional Sessions Judge, Jabalpur, whereby the learned Judge of the trial Court has framed the charges against the applicant under Sections 120-B, 147, 148, 294, 307 read with Section 149 of IPC. The order of framing of aforesaid charges has been filed by the applicant subsequently through covering memo dated 14.10.2019. 2. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case only because of his affinity with the main accused and on account of the fact that the complainant party in the present case is also involved in the murder of applicants nephew namely Amit alias Goldi Sharma whose murder was committed by complainant Pradeep Patel and for which the Crime No.549/2011 was also registered under Sections 323, 324, 307, 302/34 of IPC, and with a view to falsely implicate the present applicant as a counter blast, the name of present applicant has been included in the present case. 3. Learned counsel for the applicant has further submitted that in the Dehati Nalishi as also the FIR in the present case lodged on 10.1.2018 by the complainant Deepak Singh, the name of the present applicant does not find place despite the fact that the FIR has been lodged against as many as six persons along with other three unknown persons. It is further submitted that in the statement of injured Pradeep Patel recorded under Section 161 of Cr.P.C. on 17.1.2018 i.e. seven days after the incident took place, the name of present applicant has appeared for the first time and is referred to as a person who also had a hand in the committing the aforesaid offence. It is further submitted that the complainant Deepak Singh has also not named the applicant in his statement recorded under Section 161 of Cr.P.C. 4. It is further submitted that the complainant Deepak Singh has also not named the applicant in his statement recorded under Section 161 of Cr.P.C. 4. Learned counsel for the applicant has further submitted that the applicant is innocent and had also made a representation to the SHO of Police Station Adhartal, Jabalpur and in an enquiry report dated 15.5.2019, it is found that only a bald allegation regarding conspiracy has been made against the present applicant, as there is nothing on record to demonstrate that the present applicant was also involved in any conspiracy to commit the alleged offence in any manner. It is also mentioned that in the trial of applicant nephews murder, since the applicants brother Manoj did not turn hostile, the applicants name has been falsely included in the present case. Thus, on the basis of the aforesaid enquir report it is submitted that the order of framing of aforesaid charges may be quashed. 5. On the other hand, earned counsel for the State has opposed the prayer of the applicant and has submitted that no illegality has been committed by the learned Judge of the trial Court in framing the aforesaid charges against the present applicant. However, it is admitted that name of present applicant does not find place in the Dehati Nalishi as also in the FIR and his name for the first time has appeared in the statement of Pradeep Patel recorded under Section 161 of Cr.P.C. as a conspirator. 6. Learned counsel for the objector has also opposed the prayer of the applicant and has submitted that not only the name of present applicant is mentioned in the statement of Pradeep Patel recorded under Section 161 of Cr.P.C., but in the trial Court he has clearly deposed against the present applicant that he was also involved in the alleged crime. 7. Heard the learned counsel for the parties and perused the record. 8. 7. Heard the learned counsel for the parties and perused the record. 8. So far as the powers of the High Court to discharge an accused under its inherent jurisdiction is concerned, the Supreme Court, as early as in the year 1977 in the case of State of Karnataka v. L.Muniswamy, (1977) 2 SCC 699 , has held as under: '7.The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that: 'Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or other wise to secure the ends of justice." In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Courts inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. 9. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. 9. Learned counsel for the State Government relies upon a decision of this Court in R.P. Kapur v. State of Punjab in which it was held that in the exercise of its inherent jurisdiction under Section 561-A of the Code of 1898, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not. That may be so. But in the instant case the question is not whether any reliance can be placed on the veracity of this or that particular witness. The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with the incident leading to the prosecution. Gajendragadkar, J., who spoke for the Court in Kapur case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Courts inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the straitjacket of a rigid formula. 10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar and Century Spinning & Manufacturing Co. v. State of Maharashra show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. v. State of Maharashra show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecu7 tion that the accused be asked to face a trial. In Vadilal Panchal case , Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 327 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. 11. We are therefore in agreement with the view of the High Court that the material on which the prosecution proposes to rely against the respondents is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complainant. We would, however, like to observe that nothing in our judgment or in the judgment of the High Court should be taken as detracting from the case of the prosecution, to which we have not applied our mind, as against Accused 1 to 9. The case against those accused must take its due and lawful course." (emphasis supplied) 9. We would, however, like to observe that nothing in our judgment or in the judgment of the High Court should be taken as detracting from the case of the prosecution, to which we have not applied our mind, as against Accused 1 to 9. The case against those accused must take its due and lawful course." (emphasis supplied) 9. So far as the insufficiency of the material available in the charge sheet to discharge an accused, the Supreme Court, in the case of Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 , has held as under:- '9. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of the charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial. (emphasis supplied) 10. On due consideration of the submissions made by the learned counsel for the parties and on perusal of the record, in the light of the aforesaid enunciations of the Supreme Court, this Court finds that the presence of the applicant is not shown to be on the spot either in the Dehati Nalshi or in the FIR dated 10.01.2018 by one Deepak Singh. The name of the applicant has indeed come up for the first time in the statement of injured Pradeep Patel recorded under Section 161 of Cr.P.C. recorded on 17.01.2018 as one of the conspirators only whereas, Deepak Singh, the complainant, in his statement under Section 161 of Cr.P.C. has again not mentioned the name of the present applicant. The name of the applicant has been included for the first time by injured Pradeep Patel in the following manner:- ^^---------- rFkk canuk esgjk ds }kjk vius HkkbZ cMs fe;ka ds tfj;s vius ?kj cqykus dh lkft'k jp dj eq>s tku ls ekjus dk "kM;a= jpk x;k Fkk rFkk bl ?kVuk es larks"k mljsBs dk Hkh gkFk gS eSa v/akZefwNZr voLFkk es gks x;k Fkk eq>s nhid flag] vUuw iVsy RkFkk lkSjHk iVsy us esVks vLirky es HkrhZ djk;k gS fnukd 09-01-18 dks cMs fe;ka dh nhnh canuk esgjk Oghdy eksM ls nksigj 01-30 cts djhcu esjs ikl vkdj cksyh Fkh fd rqe esjss HkkbZ cMs fe;ka dks NksVk er le>uk og rqEgs xksyh ekj ldrk gSA canuk esgjk eq>ls fookn >xMk Hkh dh Fkh mlh 'kke 07-00 cts cMs fe;ka us Qksu dj eq>s dgk fd ge vkil es le>kSrk dj ysaxs fnukad 10-01-18 ds 5&6 fnu iwoZ esjss ppsjss HkkbZ vej dks cMs fe;ka us xkMh pykus dh ckr dj ls ekjihV dj fn;k Fkk blh fookn dks ysdj cMs fe;ka dks eSa Hkh ekjihV fd;k Fkk blh ckr ls cMs fe;ka mQZ jktsUnz esgjk eq>ls cqjkbZ j[krk Fkk vkSj viuh cgu canuk esgjk rFkk njksxk ik.Ms;] foosd ik.Ms;] ujsUnz Bkdqj] jkfou fo'odekZ] veu Bkdqj] vkdk'k lkgw] vadq'k ik.Ms; oxSjg ds lkFk feydj "kM;a= jpdj eq>s tku ls ekjus dh dksf'k'k dh xbZ jkfcu fo'odekZ rFkk veu Bkdqj ds }kjk esjs flj es cdk] ryokj ls ekjdj pksVs igqapkbZ xbZ gSA^^ (emphasis supplied) Considering the aforesaid statement on its face value, it is apparent that the applicants name has been mentioned only as a passing reference that, rFkk bl ?kVuk es larks"k mljsBs dk Hkh gkFk gS^ ^ - and in this incident Santosh Usrethe also has a hand ' . it is apparent that the applicant is not one of the assailants, and taking note of the fact that there is simply no evidence collected against the present applicant during the course of investigation, regarding his involvement even as a conspirator, this Court is of the view that no purpose would be served to allow the trial to continue against the present applicant which would only be a misuse of the process of the court and would result in his acquittal. Thus, the applicant is entitled to be discharged from the charges levelled against him. 11. As a result, revision stands allowed and the impugned order 5.3.2018 passed in ST No.253/2018 by the 8th Additional Sessions Judge, Jabalpur framing the charges against the present applicant Santosh Usrethe under Sections 120-B, 147, 148, 294, 307 read with Section 149 of IPC is hereby quashed and he is hereby stand discharged. 12. It is made clear that this court has not reflected upon the merits of the case in respect of the other accused persons and the trial Court is requested to proceed against the other co-accused persons in accordance with law without being influenced by this order. 13. A certified copy of this order be sent to the learned court below for information.