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2024 DIGILAW 477 (UTT)

Rajiv Joshi v. State of Uttarakhand

2024-07-10

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) : The challenge in this revision is made to impugned order dated 18.07.2022, passed in Sessions Trial No. 301 of 2021, State vs. Rajiv Joshi and others by the court of 2nd Additional Sessions Judge, Haldwani, District Nainital (“the case”). By the impugned order, the court below has held that there is prima facie evidence to frame charge under Section 302, 201, 202, 34 IPC against the revisionist and co-accused. Accordingly, charges were framed on the same day. 2. Heard learned counsel for the parties and perused the record. 3. The case is based on an FIR No. 242 of 2020 Police Station Mukhani, District Nainital under Section 302, 34 IPC. According to it, the informant had admitted his son at Adarsh Jivan Nasha Mukti Kendra, Kamluwaganja Road, Haldwani (“the centre”) on 23.10.2020 for his treatment. On 02.11.2020, the informant was told that his son Praveen Tamta has died. When the dead body reached to his residence, he saw that there were multiple injuries marks on his body. It revealed that the deceased Praveen was mercilessly beaten up. In the FIR, it is recorded that the revisionist who is owner of the centre and other co-accused killed the deceased and sent his dead body to his family. It is this FIR, in which after investigation, Charge Sheet No. 242 of 2020 was submitted by the Investigating Officer. Against the revisionist, charge sheet was submitted for the offences punishable under Sections 201, 202 read with 34 IPC. 4. After hearing the parties, at the stage of framing of charge, the court below held that there is prima facie evidence and framed charge under Section 302, 201, 202, 34 IPC against the revisionist and other co-accused. 5. Learned counsel for the revisionist would submit that the revisionist is owner of the centre. He did not commit any maar-peet. He did not assault the deceased. He was not in his centre whole day, when the deceased was beaten up by the co-accused. He would submit that all the witnesses that were examined during investigation have stated that other co-accused did maar-peet with the deceased and when the revisionist reached at the centre at 7:00-7:30 in the evening, he immediately released the deceased, who was tied with a pillar, made him comfortable and took him to the hospital. He would submit that all the witnesses that were examined during investigation have stated that other co-accused did maar-peet with the deceased and when the revisionist reached at the centre at 7:00-7:30 in the evening, he immediately released the deceased, who was tied with a pillar, made him comfortable and took him to the hospital. It is argued that at the most the revisionist could be charged for the offences punishable under Section 201, 202, 34 IPC, because there is a statement of the doctor that when taken to hospital, the revisionist told that the deceased had fallen down from the roof. It is argued that it may at the most be and act of giving wrong information or causing disappearance of evidence. Therefore, it is argued that the impugned order as well as the charge made, so far as, it they relates to the revisionist deserves to be set aside and the revision allowed with the direction to the court below to hear the revisionist afresh on the charge. 6. Learned State counsel would submit that charge sheet was submitted against the revisionist for offences punishable under Sections 201, 202, 34 IPC. The court below framed charge based on interpretation. 7. It is a revision against order framing charge and charge. The scope is quite restricted to the extent of examining the legality, correctness and propriety of the impugned order. The law is well settled that the courts should be much slow in interfering in any revision against order framing charge. 8. In the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460 , the Hon’ble Supreme Court on this aspect observed as hereunder:- “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 scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with 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 scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with 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 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.” 9. In sessions trial, framing of charge is a stage which sets the further course of action for the trial. Section 228 of the Code of Criminal Procedure, 1973, deals with framing of charge. It is as follows:- “228. Even framing of charge is a much advanced stage in the proceedings under the CrPC.” 9. In sessions trial, framing of charge is a stage which sets the further course of action for the trial. Section 228 of the Code of Criminal Procedure, 1973, deals with framing of charge. It is as follows:- “228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) Is exclusive triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section 91), the charge shall be read and explained to the accused, and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 10. Bare perusal of it reveals that charges may be framed only when a judge is of the opinion that there is ground for presuming that the accused has committed an offence. 11. In the instant case, admittedly, charge sheet was submitted against the revisionist under Section 201, 202, 34 IPC. In the impugned order, as such, no discussion has been made as to why the revisionist would be charged for the offence punishable under Section 302 IPC. At one place the impugned order records that the revisionist being an In-charge of the centre did conceal the incident. Although, the court records that it has also come up in the evidence that the revisionist alongwith the co-accused did maar-peet with the deceased. But, again the court held that it reveals that firstly, the incident was tried to be covered up and thereafter, wrong information was given by the revisionist. Can it be a ground to frame charge under Section 302 IPC? 12. But, again the court held that it reveals that firstly, the incident was tried to be covered up and thereafter, wrong information was given by the revisionist. Can it be a ground to frame charge under Section 302 IPC? 12. During the course of hearing, the Court has gone through the statement of witnesses recorded during investigation. Most of the witnesses are inmates of the centre. Witnesses Khemraj Sagar, Rahul Arya, Sushil Chandra Ojha, Neeraj Singh Jaggi, Himanshu Mehta, Chandra Prakash Phuleria, Anurag Kholia, Raj Mohan Aswal and Ranjan Kumar have not stated that the revisionist did maar-peet with the deceased. They have named other co-accused, who did maar-peet with the deceased on the date of incident. According to them, the deceased was beaten up in the morning. Thereafter, he was tied with a pillar and again he was beaten up. 13. Witness Khemraj Sagar has categorically stated that when the revisionist came, the deceased was made to lie on the bed and thereafter, the revisionist took the deceased for his medical. He has categorically stated that he has not seen the revisionist beating the deceased. 14. Witness Rahul Arya has also named other co-accused, who have beaten up the deceased on the date of incident. Similarly, witness Sushil Chandra Ojha also in his statement given to the Investigating Officer has supported the statement given by the witness Khemraj Sagar. Similarly, Neeraj Singh Jaggi, Himanshu Mehta, Chandra Prakash Phuleria have stated that after the co-accused gave the beatings to the deceased whole day, when the revisionist reached at the centre, he took care of the deceased. As stated, all the other witnesses have also stated that they are the co-accused, who have beaten up the deceased on the date of incident. 15. There is, in fact, no evidence of offence under Section 302 IPC against the revisionist. The witnesses, in their statements given to the Investigating Officer have stated that, in fact, when the revisionist returned to his centre, he took care of the deceased and took him to the hospital. Therefore, this Court is of the view that there is no evidence to frame charge under Section 302 IPC against the revisionist. 16. But, the question is under what provision of law, if any, charge is to be framed against the revisionist? Therefore, this Court is of the view that there is no evidence to frame charge under Section 302 IPC against the revisionist. 16. But, the question is under what provision of law, if any, charge is to be framed against the revisionist? Dr.Vinay Chamiyal, Emergency Medical Officer at the Central Hospital, Haldwani has told it to the Investigating Officer that on 01.11.2020, he was on the emergency duty when the revisionist took the deceased to him in the hospital alongwith some other persons and the revisionist then revealed that the deceased has fallen down from the roof of the centre and had become unconscious. According to this witness, by that time, the deceased had already expired. 17. The informant Jagdish Ram has also stated it to the Investigating Officer that he was told that deceased fell down from the chair and died. The IO has collected the evidence against the revisionist that it is the revisionist, who caused disappearance of evidence of offence or gave false information to screen the offenders. As also, being the In-charge of the centre, it was the duty of the revisionist to inform the authorities of the incident, which he failed to do. Therefore, this Court is of the view that there are grounds to presume that the revisionist has committed offence under Section 201, 202, 34 IPC. 18. The order dated 18.07.2022 passed in the case is modified to the extent that there are no sufficient grounds for framing the charge the charge under Section 302 IPC against the revisionist. 19. The charge under Section 302 read with 34 IPC as framed against the revisionist is quashed. For other offences, order dated 18.07.2022 passed in the case and the charge as framed on the revisionist shall remain as such and the trial of the revisionist shall continue for the offences punishable under Section 201 read with 34 IPC and Section 202 read with 34 IPC. 20. The revision is partly allowed accordingly.