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2023 DIGILAW 62 (RAJ)

Puran v. State of Rajasthan, Through PP

2023-01-05

FARJAND ALI

body2023
ORDER 1. The instant revision petition has been filed by the petitioners under Section 397 r/w Section 401 Cr.P.C. against the order dated 07.07.2022 passed by the learned Additional District and Session Judge No.1, Bandikui, District Dausa in Sessions Case No.14/2022 whereby an order framing charge has been passed against the petitioners under Sections 147, 323, 323 r/w 149, 341, 341 r/w 149, 504, 304, 304/149 in alternative 302 r/w 302/149 of the IPC. 2. Learned counsel for the petitioners submits that the complainant and the petitioners are relatives and the FIR came to be lodged over a sudden scuffle which ensued over raising a boundary over an agricultural field. The mother of the complainant died during the scuffle that arose between the parties and an FIR was lodged against the petitioners under Sections 143, 323, 341 and 302 IPC. The investigating agency filed the charge sheet against the petitioners under sections 143, 323, 341, 304 and 504 while dropping charges under Section 302 IPC. Thereafter, the learned trial court framed charges against the petitioners for offences under Sections 147, 323, 323/149, 341, 341/149, 504, 304, 304/149 in alternative 302 and 302/149 of IPC. It is submitted that the impugned order is neither legally sustainable in the eyes of law nor does it take into account the facts of the present case. The deceased was not present at the scene and she died a natural death, however, with a view to entangle the petitioners in a criminal case, a false story was cooked up by the complainant party. The learned Court below has not applied its mind to see whether the elements essential to constitute the alleged offences are present or not in the charge sheet filed by the prosecution. He, thus, submits that neither an offence is made out under Section 302 nor under Section 304 IPC in these cases because of the absence of the requisite ingredients. Framing of charge is different than booking an accused for commission of an offence. 3. He, thus, submits that neither an offence is made out under Section 302 nor under Section 304 IPC in these cases because of the absence of the requisite ingredients. Framing of charge is different than booking an accused for commission of an offence. 3. Learned public prosecutor opposes the prayer made by learned counsel for the petitioners and submits that in order to frame a charge against an accused, the trial court needs to see whether a prima facie case is made out against the said accused or not and there is no need of detailed or meticulous appreciation of material available on record at the stage of framing of charge. 4. Heard learned counsel for the petitioners as well as learned public prosecutor and perused the material available on record. 5. A perusal of the impugned order does not reflect as to how offences under Sections 147, 323, 323 r/w 149, 341, 341 r/w 149, 504, 304, 304/149 in alternative 302 r/w 302/149 of the IPC are made out or can be invoked against the petitioners as there is no mention in the order impugned regarding inflicting alternate charge. Though it is mentioned in the impugned order that the submissions made by the counsel for the parties have been heard but the same have not been discussed and appreciated. It is true that at the stage of framing of charge threadbare discussion of the material collected during the course of the investigation is not required but at the same time it is expected from the trial Judge to form an opinion as to whether there are reasonable grounds to presume that the accused should be tried for the offences alleged. It is vital for the trial Court to see as to whether the ingredients essential to constitute alleged offences are present or not in the facts and circumstances of the case. Having minutely gone through the entire material available on record, more particularly the order dated 07.07.2022, this Court is of the considered view that the learned Court below did not apply its mind before framing of charge and the order of charge-framing has been passed without considering the provisions stipulated under Sections 226 to 228 of the CrPC. Having minutely gone through the entire material available on record, more particularly the order dated 07.07.2022, this Court is of the considered view that the learned Court below did not apply its mind before framing of charge and the order of charge-framing has been passed without considering the provisions stipulated under Sections 226 to 228 of the CrPC. There seems no justification to allow the commencement of trial against the accused-petitioners for the alleged offences, elements of which are not available on record, and if available, reference of the same should be made in the order but the same is not reflecting from the order impugned. To the utter dismay of this Court, framing of charge under Section 302, 302/149 as an alternate has not been mentioned in the order but the learned trial court proceeded to frame charge under Section 302 IPC in alternate. 6. The FIR was lodged under sections 143, 323, 341 and 302 IPC, however, after investigation, police filed charge-sheet under Sections 143, 323, 341, 304 and 504 of IPC. While framing charge against the accused-petitioners, learned Trial Judge added charge under Section 302 IPC without assigning any reason for the disagreement with the final report of police and without observing what material available on the record persuaded the learned trial judge to frame charge under Section 302 of IPC. The order dated 07.07.2022 has been passed in a very mechanical order without due consideration of the material submitted by the prosecution at the stage of change-framing. The mandate of Sections 227 and 228 of the Code have not been followed as the impugned order that has been passed in the present case is cryptic and does not incorporate any relevant material available on record which propelled the learned trial judge to pass the said order. 7. The learned trial court framed the charges mechanically without appreciating the evidence available on record, specifically the Post-Mortem report and the opinion of the medical board. No external or internal injury was found by the doctor conducting autopsy and the duly constituted Medical Board was not able to form an opinion regarding her death and could not ascertain whether the death was accidental, homicidal, suicidal, natural or due to any ailment. 8. No external or internal injury was found by the doctor conducting autopsy and the duly constituted Medical Board was not able to form an opinion regarding her death and could not ascertain whether the death was accidental, homicidal, suicidal, natural or due to any ailment. 8. When a charge is framed against an accused, it is vital that the trial court considers the record of the case and the documents submitted therewith and after hearing the submissions of the parties, the trial court has to form an opinion as to whether there are reasonable grounds for presuming that the accused had committed the offence alleged or not. 9. In the landmark judgment passed by Hon'ble the Supreme Court in Union of India (UOI) Vs. Prafulla Kumar Samal and Ors. reported in (1979) 3 SCC 4 , the principles on the subject of charge have been propounded and the relevant paragraph of the said judgment is as follows: '10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and largo however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and largo however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.' 10. A detailed judgment titled H.G. Grover Vs. State of Rajasthan (S.B. Criminal Revision Petition No. 1356/2022) was passed by this court vide order dated 08.12.2022 wherein the process of framing of charge has been elaborately discussed and all the aspects that need to be considered and kept in mind before framing of charge have also been dealt with thoroughly and extensively. The relevant paragraphs of the above-mentioned judgment are reproduced as under: '16. Framing of charge is a determinative action taken by the judge as subject to the decision of framing of the charge against an accused or discharging an accused of the charges leveled against him, two outcomes are generated; either the prosecution (State or complainant) gets a point to moot, i.e. to challenge the order of discharge or the accused is made to face the trial. If the charges are framed without there being even a scruple of the ingredients or circumstances required to constitute an offence under the Sections alleged against the accused, then the accused is made to face the rigour of the trial which may prove to be deleterious to him as he may finally be acquitted of the charges so framed against him. The word 'presuming' must be read ejusdem generis to the opinion of a judge that there is a ground; the ground to form the opinion on the basis of the record of the case and the documents submitted therewith that an individual has committed an offence and thus, he shall be accused with the charge under that offence. To a slight extent, if a plea of defence is raised that the criminal proceedings are barred by any other statutory provision, then it needs to be considered and a provisional opinion needs to formed. Thus, it can safely be inferred that the process of framing of charge is an exercise that requires solemn consideration on the point of forming a tentative opinion whether there are ingredients and facts which are enough to constitute the offence for which charge is being framed against the accused or not. 17. It is needless to state that it is not expected from the court to form an opinion regarding the guilt of the accused at the stage of framing of charge. It is imperative to consider the evidence presented by the prosecution at this stage as presumption is a feeble phenomenon which would cover in its orbit, cases where there is insufficiency of evidence or some lacuna which can be thought of getting covered during the course of trial. At the step of charge-framing, it is not of the essence to be thorough with the examination of evidence or material available on record or hearing of the arguments to the extent that there should be detailed, lexical deliberation of each of the ingredients of the offence supported by precise facts. It is sufficient if there is substantial conformity to the statutory stipulations of the relevant Sections for which charge is being framed. 18.... 19.... 20.... 21.... 22.... 23.... 24 . This Court is of the opinion that the phrase 'formal application of mind' has a wide meaning which is to be construed parallel to the stage at which the trial is going on at the moment. For instance, 'formal application of mind' at the stage of trial would include to see, to observe, to ponder, to appreciate the material available on record minutely, with a fine-tooth comb, consider the arguments advanced before the dias and then reach on a legitimate conclusion. For instance, 'formal application of mind' at the stage of trial would include to see, to observe, to ponder, to appreciate the material available on record minutely, with a fine-tooth comb, consider the arguments advanced before the dias and then reach on a legitimate conclusion. 'Formal application of mind' at the stage of taking cognizance of an offence would be limited to the purpose of proceeding further in the matter; 'formal application of mind' at the stage of framing of charge would include dealing with those things in the order, which are at the very least, necessary to constitute the offence alleged. There needs to be a presumption with regard to sufficient grounds for want of frame of charge and not the sufficiency of evidence for the purpose of recording conviction. 25 . The charges are proposed to be framed on the relevant material available on record. It is not to be seen that whether the evidence produced on record is sufficient to record conviction or not, thus, probative value of defence is not required to be seen but at the very least, application of mind to see the sufficiency of material on record is required so as to put the accused to face the rigour of trial. Neither the evidence is required to be discussed in detail nor is the same required to be appreciated...' 11. In light of the above observations and the law prevailing with respect to the process of framing of charge, this Court is of the firm view that the matter is required to be sent back to the learned trial court for consideration of the material brought forth by the prosecution in an appropriate and adequate manner. 12. Accordingly, the instant Criminal Revision Petition succeeds and the same is allowed. The impugned order dated 07.07.2022 passed by the learned Additional District & Session Judge No.-1, Bandikui, District Dausa in Sessions Case No. 14/2022 is hereby quashed and set aside. The matter is remanded back to the learned trial Court with the direction to pass an appropriate order strictly in accordance with the mandate of law envisaged under Sections 227 & 228 of the CrPC which must be a speaking order, without being influenced by the earlier order passed by it and the order passed by this Court herein. 13. The matter is remanded back to the learned trial Court with the direction to pass an appropriate order strictly in accordance with the mandate of law envisaged under Sections 227 & 228 of the CrPC which must be a speaking order, without being influenced by the earlier order passed by it and the order passed by this Court herein. 13. It is to be made clear, in unambiguous terms, that the observations made herein above shall not influence the trial judge in any manner whatsoever so as to adversely affect the rights of either of the parties. 14. The revision petition stands disposed of. Stay petition also stands disposed of.