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2024 DIGILAW 208 (HP)

Dinesh Kumar v. State of H. P.

2024-03-26

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The present revision is directed against the order dated 20.06.2019 passed by the learned Additional Chief Judicial Magistrate (ACJM), Nurpur, Kangra framing the charges against the petitioner (accused before learned Trial Court) (Parties shall hereinafter be referred to in the same manner as they were referred-before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present revision are that respondent No.2/complainant made a complaint to the police stating that Savita — wife of the informant— had lodged an FIR No.289/2015 against Rishi Bhardwaj, which is pending before Sessions Court, Una. Rishi Bhardwaj called the informant on 18.10.2016 between 10-10:15 AM thrice and told him that in case, he or his wife would depose against him, he would kill both of them. He also asked them to compromise the matter and offered Rs.10,00,000/- for settling the matter; however, the informant refused to accept the money. The accused-Rishi Bhardwaj abused the informant and threatened to shoot him at Indora. He also threatened to get the services of the informant terminated. The police registered the FIR and conducted the investigation. During the investigation, the involvement of Dinesh Sharma, the present petitioner, was also found. The police obtained the call detail records and found that Dinesh Kumar had talked to Rishi Bhardwaj many times between September and October 2016. Dinesh Kumar had also appeared with the informant for the test of ADA. He had also obtained the information under the Right to Information Act and had filed a false complaint against the informant to pressurize him. Hence, the present accused had committed an offence punishable under Section 120B of IPC. Consequently, a challan was filed before the Court. 3. The learned Trial Court found sufficient reasons to frame the charge against the accused-Dinesh Kumar for the commission of offences punishable under Section 195(A), 504, 506 read with Section 120B of IPC. The accused pleaded not guilty and claimed to be tried. 4. Being aggrieved from the order passed by the learned Trial Court framing the charge, the present revision has been filed asserting that the accused filed a complaint before the Secretary to the Government of H.P. (Home) against the selection of the informant on 22.09.2016 much before the registration of the FIR. The Joint Director(Prosecution) conducted the fact-finding inquiry and recorded the statements of both sides. The Joint Director(Prosecution) conducted the fact-finding inquiry and recorded the statements of both sides. The name of the accused -Dinesh Kumar was not mentioned in the FIR and it was mentioned for the first time by the informant in his supplementary statement made on 22.11.2016. The accused Dinesh Kumar joined the investigations as was directed to do so by the police. The accused-Dinesh Kumar had also filed an original application before the Himachal Pradesh State Administrative Tribunal against the selection of the informant. He also obtained the information under the Right to Information Act from District Attorney, Kangra, which shows that the FIR was registered without the permission of the office. The learned Trial Court did not consider the material facts and framed the charges merely upon the conjectures and surmises. No specific allegation was made against the accused-Dinesh Kumar. The Court did not have the territorial jurisdiction to hear and entertain the present matter; therefore, it was prayed that the present revision be allowed and the order framing the charge passed by the learned Trial Court be set aside. 5. I have heard Mr. N.S. Chandel learned Senior Counsel assisted by Mr Sanjeev Kumar Suri, learned counsel for the petitioner, Mr Prashant Sen, learned Deputy Advocate General for respondent No.1/State and Mr Vikas Rajput, learned counsel for respondent No.2/informant. 6. Mr. N.S. Chandel, learned Senior Counsel for the petitioner/accused submitted that the learned Trial Court erred in framing the charge against the accused. Even if the allegations made against the accused are accepted to be correct, they do not constitute the commission of offences punishable under Sections 195A, 504, 506 read with Section 120(B)of IPC. Merely making a complaint against a public official does not amount to injury as defined under Section 195(A) of IPC. The statement of the informant recorded under Section 161 of Cr.P.C. does not show that he was threatened to make a false statement; rather it shows that he was told to withdraw the complaint after which, the accused would also withdraw his complaint. Even if it is accepted to be correct that such a conversation had taken place, it would not attract the provision of Section 195A of IPC. There is no evidence that the accused had conspired to intimidate or abuse the informant; hence, he prayed that the accused be discharged and the revision filed by the accused be allowed. 7. Mr. Even if it is accepted to be correct that such a conversation had taken place, it would not attract the provision of Section 195A of IPC. There is no evidence that the accused had conspired to intimidate or abuse the informant; hence, he prayed that the accused be discharged and the revision filed by the accused be allowed. 7. Mr. Prashant Sen, learned Deputy Advocate General for the respondent No.1/State submitted that accused Dinesh Kumar and Rishi Bhardwaj had talked to each other many times in September and October 2016, which shows that they were known to each other. The accused-Rishi threatened to get the complainant dismissed from service and the present accused filed a complaint against the informant, which shows that the present accused-Dinesh had acted in pursuance to the threat advanced by accused-Rishi. There is no infirmity in the order passed by the learned Trial Court for framing the charges; hence, he prayed that the revision be dismissed. 8. Mr Vikas Rajput, learned counsel for respondent No.2 adopted these submissions. He submitted that there was an enmity between the present accused and the informant before the incident due to which, the present accused had conspired with the main accused-Rishi to threaten and abuse the complainant. The merits of the allegations are not to be seen at this stage and would be seen at the time of the completion of the trial; therefore, he prayed that the present revision be dismissed. 9. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 10. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. 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 is 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 on the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. It is trite law that the application of judicial mind is 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 on 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. 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 chargesheet 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. 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 v. 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. 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. 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. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. 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.” 11. Learned Trial Court framed the charge against the accused for the commission of offences punishable under Section 195(A), 504, 506 read with Section 120(B) of IPC. Learned Trial Court framed the charge against the accused for the commission of offences punishable under Section 195(A), 504, 506 read with Section 120(B) of IPC. Section 195(A) of IPC reads as under: Procedure for witnesses in case of threatening, etc Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of anyone in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentenced in the same manner and to the same extent as such innocent person is punished and sentenced. 12. It is apparent from the bare perusal of the section that the accused should have threatened another with injury to his personal reputation or property or to the person or reputation of anyone in whom that person is interested so that the person threatened may give false evidence to attract its provision. 13. The name of the present accused was not mentioned in the FIR. His name was mentioned for the first time by the informant in his statement recorded under Section 161 of Cr.P.C. The informant stated in his statement recorded under Section 161 Cr.P.C. that he was called by Joint Director (Prosecution), Dharamshala at ADA Office, Amb on 07.10.2016, where the informant came to know that Dinesh Kumar had made a false complaint against the informant before Secretary, Department of Home. The documents were handed over to the informant during the inquiry and the informant found after going through these documents that FIR No. 98 of 2011 dated 18.04.2011 and its record was annexed to the complaint. The informant did not know the accused till 07.10.2016 and met him for the first time on that day. Dinesh Kumar met the informant outside the office of ADA, Amb and asked him to withdraw FIR No.289/2015 and he (Dinesh Kumar) would withdraw his complaint. The informant declined to do so. The informant did not know the accused till 07.10.2016 and met him for the first time on that day. Dinesh Kumar met the informant outside the office of ADA, Amb and asked him to withdraw FIR No.289/2015 and he (Dinesh Kumar) would withdraw his complaint. The informant declined to do so. The informant sought the information under the Right to Information Act and found that the record was obtained by Rishi Bhardwaj and he had made a false complaint against the informant at the instance of Dinesh Kumar. Rishi Bhardwaj was pressurizing the informant to withdraw the case by saying that his uncle Mahesh Bhardwaj was posted as Deputy Secretary (Home). 14. It is apparent from the perusal of the statement that the grievance of the informant is that accused Dinesh Kumar had asked him (informant) to withdraw his complaint and accused Dinesh assured him to withdraw the complaint filed by him against the informant. If this grievance is accepted to be correct, it nowhere shows that the informant was threatened to make a false statement. As per the informant, he was simply asked to withdraw the complaint after which the accused- Dinesh would withdraw his complaint. Withdrawing the complaint cannot amount to giving a threat to give false evidence. It was laid down by the Hon’ble Supreme Court in Salib v. State of U.P., 2023 SCC OnLine SC 947 that asking the informant to withdraw the case does not amount to the commission of the offence punishable under Section 195A of IPC. It was observed: 16. A plain reading of the aforesaid provision indicates that if any individual is threatened with any injury to his person, reputation or property and such threats are administered with intent to cause that person to give false evidence, the same would constitute an offence under Section 195A of the IPC. In our opinion, none of the ingredients to constitute the offence punishable under Section 195A of the IPC are disclosed, on plain reading of the FIR and the further statement of the first informant including the statement of the so-called eye witness. The allegation in the FIR is that the accused persons threatened and pressurised the first informant to withdraw her first FIR bearing No. 122 of 2022 registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452 reply of the IPC. The allegation in the FIR is that the accused persons threatened and pressurised the first informant to withdraw her first FIR bearing No. 122 of 2022 registered for the offences punishable under Sections 376D, 323, 120B, 354A and 452 reply of the IPC. There is nothing to indicate that the accused persons threatened the first informant with the intent that the first informant gives false evidence before the Court of law. The later part of Section 195A makes it very clear that false evidence means false evidence before the Court of law. On such false evidence if a person is convicted and sentenced, then the person found guilty of administering threats would be liable to be punished with the same punishment and sentence in the same manner and to the same extent as such innocent person is punished and sentenced. The word “false” in Section 195A should be read in the context with what has been explained in Section 191 of the IPC which falls in Chapter XI - of False Evidence and Offences Against Public Justice. Thus, even if we believe the allegations levelled in the FIR to be true, none of the ingredients to constitute the offence punishable under Section 195A are disclosed. To give a threat to a person to withdraw a complaint or FIR or settle the dispute would not attract Section 195A of the IPC. 15. In the present case, the informant stated that the accused had asked him to withdraw the FIR, which does not amount to the commission of an offence punishable under Section 195A of IPC as laid down by the Hon’ble Supreme Court; therefore, the learned Trial Court erred in framing the charge against the accused for the commission of an offence punishable under Section 195A of IPC based on the statement of the informant. 16. The term ‘injury’ has been defined under Section 44 of IPC as under: - “The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.” 17. The term ‘illegal’ has been defined under Section 43 of IPC as under: “The word "illegal" applies to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be "legally bound to do" whatever it is illegal in him to omit.” 18. The term ‘illegal’ has been defined under Section 43 of IPC as under: “The word "illegal" applies to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action, and a person is said to be "legally bound to do" whatever it is illegal in him to omit.” 18. It is apparent from the combined reading of these two provisions that injury denotes harm, which has been caused illegally. Thus the accused should have done an act, which is an offence, prohibited by law, or which furnishes a ground for civil action. In the present case, the filing of the complaint against the informant is not an offence. It does not give rise to a civil action. The prosecution assumed that the complaint was false, whereas, the inquiry was being held into the same by the competent authority as per the statement of the informant; therefore, the second ingredient that the injury was caused to the informant is also missing. 19. The prosecution has also relied upon the conversation between the accused to infer the conspiracy. Merely because accused Rishi Bhardwaj and Dinesh Kumar had talked to each other cannot lead to any inference of any conspiracy. Further, the fact that accused Rishi Bhardwaj had applied for the information under the Right to Information Act and this information was used by the accused-Dinesh Kumar cannot lead to an inference that there was a conspiracy to intimidate and abuse the complainant/informant. At worst, this can be a conspiracy for making a complaint against the complainant by both the accused, which as already stated, does not amount to any offence, any act prohibited by law or an act giving rise to the civil action. 20. The Police stated in the charge sheet that the accused-Dinesh Kumar had tried to pressurize the informant to withdraw the complaint made against Rishi Bhardwaj, therefore, Section 120(B) of IPC was added. Section 120(B) of IPC reads as under: (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 21. Criminal conspiracy is defined under Section 120(A) as under: 120A. Section 120(B) of IPC reads as under: (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] 21. Criminal conspiracy is defined under Section 120(A) as under: 120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 22. It is apparent from a perusal of the definition that act should have been illegal as understood in Section 43 of the Indian Penal Code or should have been done by illegal means to constitute the offence of conspiracy. As already stated, filing a complaint against a public servant is not an illegal act. It is also not an act, that is done by illegal means because every member of the public has a right to file a complaint against the public servant if he is aggrieved by any of his acts, therefore, the act of the accused-Dinesh Kumar will not fall within the definition of criminal conspiracy within the meaning of Section 120A of IPC and no offence punishable under Section 120B of IPC was made out in the present case. 23. It was submitted that both the accused-Dinesh Kumar and the informant had appeared for the examination of ADA. The accused-Dinesh Kumar made various complaints against the informant to get his services terminated. If the complaints were false, they would be dismissed and if they were correct, the informant cannot have any grievance with them; therefore, the mere filing of the complaints will not constitute an offence punishable under the law and the criminal prosecution cannot be continued merely because the accused Dinesh filed the complaints against the informant. 24. If the complaints were false, they would be dismissed and if they were correct, the informant cannot have any grievance with them; therefore, the mere filing of the complaints will not constitute an offence punishable under the law and the criminal prosecution cannot be continued merely because the accused Dinesh filed the complaints against the informant. 24. The learned Trial Court did not advert to any of these aspects and simply stated that a prima facie-case is made out against the accused for the commission of offences punishable under Sections 195A, 504, 506 and 120B of IPC, which as demonstrated above is not correct. Hence, the present revision is allowed and the order dated 20.6.2019 passed by the learned Trial Court framing the charges against the accused-Dinesh Kumar for the commission of offences punishable under Sections 195A, 504, 506 and 120B of IPC are ordered to be set aside. 25. Registry is directed to transmit the record of learned Trial Court forthwith.