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2023 DIGILAW 576 (HP)

Pankaj Sharma v. State of Himachal Pradesh

2023-12-21

RAKESH KAINTHLA

body2023
JUDGMENT : RAKESH KAINTHLA, J. 1. The present revision is directed against the order dated 03.08.2021, passed by the learned Judicial Magistrate 2nd Class, Court No. 7, Shimla, District Shimla in Case No. 85 of 2003, whereby charges for the commission of offences punishable under Sections 325 read with Section 34 of IPC have been framed against the petitioner. It has been asserted that informant Rajesh Kumar alongwith Kuldeep Kumar made a Rapat to the Police Post Summerhill, Shimla on 07.12.2002 that they alongwith Khem Chand were going from Himachal Pradesh University Hostel to the Library. When they reached Summerhill Circle, 3-4 persons asked them as to where they were going and started beating them. One of the assailants used a sharp-edged object. The names of the assailants were stated to be Suresh Kumar and Shayam. Names of other persons were not known to the informant. The police arrested the assailants and released them on bail. Challan was prepared and presented before the Court. One of the accused Pankaj stopped attending the Court and he was declared a proclaimed offender. Subsequently, Suresh Kumar and Shyam Kumar were acquitted of the charges framed against them vide judgment dated 30.10.2012. The name and parentage of Pankaj were mentioned as Pankaj son of Tek Chand, resident of Sharma Cottage, Middle Sangti, Tehsil and District Shimla, H.P. in the record as well as the personal bond furnished by him. Rajeev Thakur stood surety of Pankaj. The description of Pankaj was given as 5 feet, 6 inches in the certificate of identity. Rajeev Thakur made a statement on 07.01.2020 before the learned Judicial Magistrate First Class, Court No. 7 and he identified the petitioner as Pankaj, who was arrayed as an accused. The learned Court charged the petitioner for the commission of an offence punishable under Section 325 of Cr.P.C. read Section 34 of IPC. The order qua framing of charge is bad. No case is made out against any of the accused as per the statement of Rajesh Kumar made on oath. The name of Pankaj is shown as Pankaj as son of Tek Chand, resident of Sharma Cottage, Middle Sangti in the copy of the judgment. The petitioner is shown as the son of N.P. Sharma and not the son of Tek Chand. He never resided in Sharma Cottage in Middle Sangti. The name of Pankaj is shown as Pankaj as son of Tek Chand, resident of Sharma Cottage, Middle Sangti in the copy of the judgment. The petitioner is shown as the son of N.P. Sharma and not the son of Tek Chand. He never resided in Sharma Cottage in Middle Sangti. The learned Trial Court erred in ignoring these facts and wrongly charged the petitioner on the false statement of Rajeev Thakur. The learned Judicial Magistrate held in its judgment that eyewitnesses had shown their ignorance about the fight and did not know the accused; therefore, no offence is made out against the petitioner. The continuation of the proceedings would not serve any purpose. Hence, it was prayed that the present petition be allowed and order qua framing of charge be set aside. 2. I have heard Mr. Parav Sharma, learned counsel for the petitioner and Mr. R.P. Singh learned Deputy Advocate General, for respondent-State. 3. Mr. Parav Sharma, learned counsel for the petitioner submitted that accused Pankaj was described as the son of Tek Chand, resident of Sharma Cottage, Middle Sangti, Tehsil &District Shimla H.P. in the copy of the judgment passed by learned Judicial Magistrate First Class, Court No. 7, Shimla, H.P. & the bail bonds, whereas petitioner is the son of N.P.Sharma resident of Thakur Niwas, Lower Court Road, Chakkar Shimla, H.P. The learned Trial Court had wrongly charged the petitioner with the commission of an offence punishable under Section 325 of IPC read with Section 34 of IPC. He further submitted that the other two accused have been acquitted by the learned Trial Court vide judgment dated 30.10.2012 as the witnesses failed to identify them in the Court. The continuation of the proceedings against the petitioner will not serve any purpose; therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court framing the charge against the petitioner be set aside. 4. Mr. R.P. Singh, learned Deputy Advocate General submitted that the statement of Rajeev Thakur was recorded by the police and the Court. He identified the present petitioner as the accused charge sheeted before the Court; therefore, there is sufficient evidence to show that the present petitioner was involved in the commission of an offence. 4. Mr. R.P. Singh, learned Deputy Advocate General submitted that the statement of Rajeev Thakur was recorded by the police and the Court. He identified the present petitioner as the accused charge sheeted before the Court; therefore, there is sufficient evidence to show that the present petitioner was involved in the commission of an offence. The material on record justifies the framing of the charge and there is no infirmity in the order so passed by the learned Trial Court. Therefore, he prayed that the present petition be dismissed. 5. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 6. It was laid down by the Hon’ble Supreme Court in State of Gujarat vs. Dilipsinh Kishorsinh Rao, 2023 SCC Online SC 1294 that the Court has to look into the material placed before it at the time of framing of charge. It was observed: “7. It is trite law that the application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on the basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that the accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. 8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. 9. If the accused is able to demonstrate from the charge-sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court can consider the material produced by the accused before the I.O. 10. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu vs. N. Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held: “29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, the probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini-trial at this stage.” 11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of the existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of the existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra vs. Som Nath Thapa, (1996) 4 SCC 659 and State of M.P. vs. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.” 7. A perusal of the record shows that the police had mentioned the name of the accused no. 2 as Pankaj son of Tek Chand, resident of Sharma Cottage, Middle Sangti, Tehsil & District Shimla, H.P. He failed to appear before the learned Trial Court and he was declared a proclaimed offender. The warrants of arrest issued against the accused to secure his presence were returned with the report that Pankaj son of Sh. Tek Chand did not reside in Sharma Cottage Middle Sangti, Tehsil & District Shimla, H.P. 8. When the petitioner failed to appear in the Court a notice was issued to his surety, who made a statement on oath before the Court that he had stood surety of Pankaj Sharma son of N.P. Sharma on 08.12.2002. He did not know the name of the father of Pankaj Sharma. He knew Pankaj by face before standing his surety. He also identified the photograph of Pankaj Sharma son of Sh. N.P. Sharma in the Court. 9. This statement was made on 07.01.2020, the truthfulness or otherwise of the statement is not to be seen in the revision against the order framing the charge. Sufficient to say that this statement was never challenged and has attained finality. He also identified the photograph of Pankaj Sharma son of Sh. N.P. Sharma in the Court. 9. This statement was made on 07.01.2020, the truthfulness or otherwise of the statement is not to be seen in the revision against the order framing the charge. Sufficient to say that this statement was never challenged and has attained finality. Thus, in view of the positive statement of the surety made on oath, it is difficult to agree with the submission that the petitioner is not the person, who was originally arrayed as the accused. 10. A heavy reliance was placed upon the findings recorded by the learned Judicial Magistrate, First Class, Court No. 7, in which the learned Trial Court had held that both the eye-witnesses had shown their ignorance about the fight and they stated that they did not know the accused persons. The injured also did not say anything about the fight. These findings pertain to the accused persons who had faced trial before the learned Trial Court and will not affect the petitioner. It was laid down by Punjab and Haryana High Court in Munfed vs. State of Haryana, 2014 SCC Online P&H 12396 that a proclaimed offender cannot rely upon the findings recorded against the co-accused. It was observed: The apex court in the judgment reported as Yanab Sheikh @ Gagu vs. State of West Bengal, (2013) 6 SCC 428 held as follows: “23. The cumulative effect of the above discussion is that the acquittal of a co-accused per se is not sufficient to result in the acquittal of the other accused. The Court has to screen the entire evidence and does not extend the threat of falsity to universal acquittal. The Court must examine the entire prosecution evidence in its correct perspective before it can conclude the effect of acquittal of one accused on the other in the facts and circumstances of a given case.” A similar view was taken by the Full Bench of Kerala High Court in the judgment reported as T. Moosa vs. Sub-Inspector of Police, Vadakara Police Station, Ernakulam. It was held that the judgment of acquittal of co-accused in a criminal trial is not admissible under sections40 to 43 of the Evidence Act to bar the subsequent trial of absconding co-accused and cannot be reckoned as a relevant document while considering the prayer to quash the proceedings under Section 482 Cr.P.C. Such judgment would be admissible only to show who were the parties in the earlier proceedings and the factum of acquittal. It appears that in another case reported as Rajan Rai vs. State of Bihar, 2005 (4) RCR (Criminal) 885 the apex court held that the trial of co-accused tried separately is wholly irrelevant in a subsequent trial of the accused who were not tried earlier. The judgment of acquittal of co-accused would not be admissible within the meaning of sections 40 to 44 of the Evidence Act. In view of settled law, I find no merit in the plea of the petitioners. Prosecutrix clearly named the petitioners in her statement under section 164 Cr.P.C. Petitioners, however, absconded. They waited for the trial of the co-accused to be over. Thereafter, they preferred instant petition seeking quashing on the basis of their acquittal. In view of the clear enunciation of the law by the apex court, no case for quashing of FIR and subsequent proceedings is made out. 11. This position was reiterated in Sarabjit Singh vs. State of Punjab and Another, MANU/PH/1030/2021 : 2021(4) RCR (Criminal) 87 wherein it was observed: “5. Learned counsel for the petitioner has argued that once the prosecution had set up a common case against the petitioner and his co-accused, the judgment of acquittal rendered by the trial Court would equally benefit him. He submits that as the judgment of acquittal has been further upheld by the appellate Court, the trial qua the petitioner at this stage would be an empty formality as the chances of conviction are bleak. He submits that while declaring the petitioner as a proclaimed offender, no proper procedure was adopted by the trial Court, therefore, the said order declaring him a proclaimed offender is bad in law. He prays that the impugned orders may kindly be quashed. xxx xxx xxx 9. Apart from it, admittedly the petitioner never associated himself with the trial proceedings, therefore, evidence adduced by the prosecution qua his co-accused cannot be read in respect of the petitioner.” 12. He prays that the impugned orders may kindly be quashed. xxx xxx xxx 9. Apart from it, admittedly the petitioner never associated himself with the trial proceedings, therefore, evidence adduced by the prosecution qua his co-accused cannot be read in respect of the petitioner.” 12. Therefore, the judgment passed by the learned Trial Court in the absence of the petitioner will not assist him. 13. The Court has to consider the statements of the witnesses recorded by the police under Section 161 of Cr.P.C. and other material collected during the investigation while framing the charge. Rajesh Kumar had specifically stated that Pankaj was one of the assailants, therefore, it cannot be said that the learned Trial Court did not have sufficient material for framing of charges against the petitioner. 14. It was laid down by the Hon’ble Supreme Court in Dilipsinh (supra) that the revisional court does not sit in appeal over the order sought to be revised and only examines the legality or regularity of the procedure. It was observed: 13. The power and jurisdiction of the Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding 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 into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor vs. Ramesh Chandra, (2012) 9 SCC 460 where the scope of Section 397 has been considered and succinctly explained as under: “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 well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the law. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bear a token of careful consideration and appear to be in accordance with the 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 the 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 CrPC.” 14. This Court in the aforesaid judgment has also laid down principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr.P.C. is sought for as under: “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. 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 the 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 to 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. 27.9. 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 the continuation of prosecution rather than its quashing at that initial stage. 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 the continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding admissibility and reliability of the documents or records but is an opinion formed prima facie.” 15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.” 15. There is no infirmity in the order passed by the learned Trial Court and no interference is required with the same. Hence, the present petition fails and the same is dismissed. The petitioner is directed to appear before the learned Trial Court on 11.01.2024. 16. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.