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2024 DIGILAW 380 (RAJ)

Sher Singh v. State of Rajasthan

2024-02-29

ANIL KUMAR UPMAN

body2024
ORDER : 1. By way of this misc. petition under Section 482 Cr.P.C., the petitioners have prayed for quashing of the FIR No. 31/2010 registered at Police Station Surajgarh, District Jhunjhunu for offences under Section 3/7 of the Essential Commodities Act and Section 120B IPC along with all consequential proceedings arising out of it including orders dated 28.04.2010 passed by learned Chief Judicial Magistrate, Jhunjhunu whereby cognizance was taken on 02.01.2014 whereby charges were framed against them for offences under Sections 3/7 of the Essential Commodities Act for violating the provisions of The Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 2000. The order dated 22.09.2015 passed by learned Sessions Judge, Jhunjhunu in revision No. 54/2014 filed by the petitioners has also been put to challenge in this misc. petition whereby the learned revisional court dismissed the revision and affirmed the order dated 02.01.2014. 2. As per the prosecution case, on 27.02.2010, Rajneesh Punia, Circle Inspector Circle Chirawa lodged a report inter alia alleging that he received a secret information that LPG cylinders pertaining to Vijay Gas Agency were loaded in Pickup vehicle (No. 18 GA 0514) and in collusion with local gas agency of Chirawa, same were going to be sold in black-marketing in Haryana. Acting upon the said information, when he along with other police personnel went there and checked the said vehicle wherein 50 LPG cylinders (HP Gas Company) were found there. During interrogation, the driver Sher Singh and his companion Sunil disclosed that these cylinders were bought by them from a vehicle No. RJ 18 GA 1637 Tata 407 of Virendra and Babulal working for Vijay Gas Agency and they were going to sell them in Haryana. However, they do not have any valid license with them. It was also dislosed by them that the aforesaid Tata-407 vehicle has departed for Surajgarh Chirawa. It was alleged in the report that the said Tata-407 was stopped near Jakhod Railway Crossing. There were two persons namely Babulal and Virendra Kumar found in the truck. They stated that they were the employees of Vijay Gas Agency, Chirawa. There were total 62 empty cylinders lying in the truck. On the basis of this report, the FIR No. 31/2010 was registered at Police Station Surajgarh, Jhunjhunu for offences under Section 3/7 of the Essential Commodities Act and Section 120B IPC. They stated that they were the employees of Vijay Gas Agency, Chirawa. There were total 62 empty cylinders lying in the truck. On the basis of this report, the FIR No. 31/2010 was registered at Police Station Surajgarh, Jhunjhunu for offences under Section 3/7 of the Essential Commodities Act and Section 120B IPC. The accused persons were arrested and investigation commenced in the matter. 3. Shri. A.K. Gupta, Learned senior counsel assisted with Shri. Surabh Pratap Singh and Gaurav Sharma submits that after completion of investigation, on 28.04.2010, the police filed chargesheet before learned Chief Judicial Magistrate, Jhunjhunu. Thereafter, the learned trial court took cognizance in the matter and on 02.01.2014, the learned trial court framed charges against the accused petitioners for offence under Section 3/7 of the Essential Commodities Act to which the accused petitioners pleaded not guilty and claimed trial. 4. Shri. Gupta, vehement and fervently submits that order framing charge dated 02.01.2014 is contrary to law and is liable to be set aside. He submits that said order is totally silent as to on what basis/grounds, the learned trial court framed charges against the petitioners. He contends that the learned trial court ought to have disclose the reasons/grounds before taking framing charge against the petitioners. He thus, submits that the trial court erred of facts as well as law in passing the impugned order dated 02.01.2014. The same has been passed without application of mind. It is submitted that as per the factual report, which is annexed as Annexure-2, it is clear that further investigation of the matter was also conducted by CID (CB), Range Cell Jaipur and after investigation, it was concluded that no offence has been found proved. Apart from that, he contends that Dy. SP, Jhunjhunu, vide communication dated 14.04.2010 sent to District Superintendent of Police, Jhunjhunu has also found that no offence has been made out in the instant case and proposed negative final report in the matter. However, while overlooking all these important aspect of the matter, the chargesheet was filed against the petitioners for offence under Section 3/7 of the Essential Commodities Act. Shri. Gupta argues that the petitioners challenged the order dated 02.01.2014 before the learned Sessions Judge, Jhunjhunu by filing revision (No. 54/2014). However, the learned revisional court also erred in dismissing the revision. However, while overlooking all these important aspect of the matter, the chargesheet was filed against the petitioners for offence under Section 3/7 of the Essential Commodities Act. Shri. Gupta argues that the petitioners challenged the order dated 02.01.2014 before the learned Sessions Judge, Jhunjhunu by filing revision (No. 54/2014). However, the learned revisional court also erred in dismissing the revision. He thus, prays that in the aforesaid circumstances, the impugned FIR and all consequential proceedings arising out of it may be quashed and set aside and while quashing the order framing charge, they may be discharged. 5. Per contra, learned Public Prosecutor vehemently opposes the submissions of petitioner's counsel. He submits that the learned trial court has duly applied its mind in taking cognizance in the matter as also did not commit any illegality or perversity in while framing charge. The learned trial court was not required to give reasoning while passing order framing charge. Learned revisional court also affirmed the order dated 02.01.2014. He thus, craves dismissal of the misc. petition. 6. I have heard and considered the submissions advanced at bar and have gone through the record. 7. After having heard and considered the submissions advanced at bar and after perusing the material including the factual report (Annexure-2) prepared by CID (CB), Range Cell, Jaipur and communication dated 14.4.2010 (Annexure-3), sent by Dy. SP, Khetari to District Superintendent of Police, Jhunjhunu as also the order framing charge dated 02.01.2014, I am of the considered opinion that the learned trial court has committed error in framing charge against the petitioners. The order dated 02.01.2014 has been passed in a very casual manner and is a totally non-speaking order inasmuch as it appears that while passing the order framing charge, the learned trial court has just tried to fulfill empty formalities. When right of hearing is given to an accused at the time of framing of charge, then, it is expected that learned trial court should have properly dealt with the arguments and documents produced by him. The documents aforesaid (Annexure- 2 and Annexure-3) suggest that during investigation, negative final report was proposed in the matter, which are in favour of the accused petitioners. 8. I fortify my views from the Supreme Court judgment in the case of Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 wherein it was held as under: 6. The documents aforesaid (Annexure- 2 and Annexure-3) suggest that during investigation, negative final report was proposed in the matter, which are in favour of the accused petitioners. 8. I fortify my views from the Supreme Court judgment in the case of Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 wherein it was held as under: 6. Secondly, it would appear that under Section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior court, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents. The discretion, therefore, is to be exercised by a senior and more experienced court so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court. 7. Section 227 of the Code runs thus: “If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” The words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post-office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 8. The scope of Section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh, (1978) 1 SCR 257 where Untwalia J. speaking for the Court observed as follows (at p. 2019): “Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stages is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.” 9. In an another Supreme Court judgment in the case of Dilawar Balu Kurane v. State of Maharashtra, (2002) 1 RLW (Raj) 157, similar view was expressed, which reads as under: (12) Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding cut whether or not a prima facie case against the accused has been made out; 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; by and large 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 justified to discharge. 10. Be that as it may. Without commenting anything on the merits of the case, I deem it appropriate to dispose of the misc. petition with direction that the learned trial court shall pass a fresh reasoned order on the point of framing charge after hearing learned counsel for the petitioners as well as learned State Counsel and dealing with the entire material including factual report prepared by CID (CB), Range Cell, Jaipur and communication dated 14.4.2010, sent by Dy. SP, Khetari to District Superintendent of Police, Jhunjhunu, available on record, keeping in view the ratio passed in the aforecited cases, within a period of two months from the date of receipt of copy of this order. The order framing charge dated 02.01.2014 passed by the learned trial court as well as the order dated 22.09.2015 passed by learned revisional court are quashed and set aside. Stay application is also disposed of.