HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 AFR Case :- APPLICATION U/S 482 No. - 26741 of [SECTION]1 Petitioner :- Smt. [ENTITY] Respondent :- [ENTITY] Petitioner Counsel :- [ENTITY],J.B.Kesharwani Respondent Counsel :- Govt.Advocate Hon'ble Shri [ENTITY],J.
1. Rejoinder affidavit filed on behalf of the petitioner is taken on record.
2. Heard learned counsel for the petitioner and the learned AGA for the State and perused the record.
3. It appears that in S.T. No. 579 of [SECTION]1, State v [ENTITY] & others, the learned Additional Sessions Judge, Court No. 3, Bulandshahr found a prima facie case for framing charges under [SECTION] and [SECTION] [ACT] against the petitioner, Smt. [ENTITY] and other accused vide his order dated 20.07.[SECTION]1.
4. The learned counsel for the petitioner submitted that on 28.02.[SECTION]0 at about 12.00 noon, a dead body of an unknown person was found and accordingly the complainant lodged an FIR on the same date at P.S. Ahmadgarh, District Bulandshahr on which basis the police investigated the matter and submitted a charge sheet against the petitioner and other accused. It was further submitted that according to the prosecution, the petitioner had illicit relations with one [ENTITY] and that illicit relation had come to the knowledge of [ENTITY] and [ENTITY], so the petitioner asked the said [ENTITY] to eliminate [ENTITY] and [ENTITY]. Subsequent thereto the said [ENTITY] was murdered and in that murder case [ENTITY] and [ENTITY] were the main accused. After that, [ENTITY] and [ENTITY] killed the said [ENTITY]. It was next submitted that there was no evidence to connect the petitioner with the murder of [ENTITY] in any way. If the petitioner required [ENTITY] to eliminate [ENTITY] and [ENTITY] but before he could do so, the said [ENTITY] was murdered, therefore, there was no question of any complicity of the petitioner, so far as the murder of [ENTITY] was concerned. It was further submitted that the learned trial court unnecessarily gave significance to the conclusion drawn by the Investigating Officer. The learned trial court was required to see whether or not there was sufficient material on record to make out a prima facie case against the petitioner. The learned trial court was also required to see whether ingredients of the offences under [SECTION] and [SECTION] [ACT] were made out against the petitioner or not. In considering these questions, the relevant materials were the evidence collected during the investigation and filed in support of the charge sheet, therefore, the remand paper or any overwriting in the case diary or conclusion of the Investigating Officer had no relevance. In this way according to the learned counsel for the petitioner, the learned trial court travelled beyond its jurisdiction in considering the irrelevant materials.
5. On the other hand the learned AGA submitted that the learned trial court has very categorically held that there were prima facie sufficient materials to frame charges against the petitioner and the other accused, therefore, this Court, in exercise of inherent power, cannot make extensive exercise to evaluate the materials on record.
6. [SECTION] of the [ACT] (in short ?the Code?) deals with the discharge of the accused, which provides that:
?If, upon consideration of the record of the case and the documents submitted herewith, 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.
7. [SECTION] deals with the provisions relating to framing of charge, which provides:
?(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-
(b) is exclusively triable by the court of sessions, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), 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.?
8. Therefore, while considering the question to frame a charge or to discharge the accused, the trial court has to consider the case according to the provisions of [SECTION] and [SECTION] of the Code.
9. The Apex Court had occasions to consider the ambit and scope of [SECTION] and [SECTION] of the Code (sections of the Code 239 and 240 in Magistrate triable cases) in several decisions and some of them are as follows:
(I) [PRECEDENT];
(ii) [PRECEDENT];
(iii) [PRECEDENT] Vs. Balwinder Singh and others (2009) 2 Supreme Court Cases (Cri) 850
(iv) State of Orissa vs. Debendra Nath Padhi (2005) 1 SCC 568
(v) [ENTITY] vs. Central Bureau of Investigation, JT [SECTION]0(10) SC 413
10. In the case of [PRECEDENT] (supra), the Apex Court held that in exercising powers under [SECTION] [ACT], the settled position of law is that the Judge while considering the question of framing the charges under the limited purpose of finding out 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 gave rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under [SECTION] [ACT], the Judge cannot act merely as a post office or a mouthpiece 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducing a trial.
11. In case of [PRECEDENT] (supra), the Apex court held that it is trite that the words "not sufficient ground for proceeding against the accused" appearing in [SECTION] [ACT], postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima face case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible.
12.In the case of [PRECEDENT] (supra), the Apex Court reiterated the aforesaid principles and held that the jurisdiction of the learned Sessions Judge while exercising power under [SECTION] [ACT] is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time.
13. In [ENTITY]'s (supra) case, a larger Bench of the Apex Court held that the defence evidence has no relevance and cannot be considered at the stage of charge.
14. In the case of [ENTITY] (Supra) the Apex Court has formulated the following guidelines with regard to the question as to how a matter for framing a charge against the accused is to be dealt with:
"(i) The Judge while considering the question of framing the charges under [SECTION] of the [ACT] 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
iii) The Court cannot act merely as a Post Office or a mouthpiece 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 etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
vi) At the stage of [SECTION] and [SECTION], the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
15. A survey of the aforesaid decisions reveals that the accused has no right to adduce any evidence or material at the stage of charge nor the court is required to consider any defence evidence. At that stage the materials collected during the investigation and placed before the court in support of the police report submitted under [SECTION] of the Code are the only relevant materials. While considering the question to frame a charge against the accused or to discharge him, the court cannot act merely as a post office or a mouthpiece of the prosecution but has to see whether the ingredients of the offence to be charged, are made out from such materials. If any ingredient is missing in the material, the charge cannot be framed. Moreso, the materials produced by the prosecution have to be taken at their face value and at that stage the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshalling and appreciation of evidence is not in the domain of the court at that point of time. What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge can be framed. The court has to consider broad probabilities of the case, total effect of the evidence and the documents produced including basic infirmities, if any. If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless.
16. In the present case, the learned trial court unnecessarily gave significance to the conclusion of the Investigating Officer and remand proceedings. The learned trial court was required to see whether or not the materials placed on record had made out any charge against the petitioner. The statements of the witnesses and other materials filed in support of the police charge sheet ought to have been taken in account while considering the question of discharge but it appears that the learned trial court considered the case of the petitioner along with the other accused by making a general and sweeping observations against all the accused without taking into consideration as to what nature of evidence had been produced against the petitioner and what was her complicity. The other accused are said to be the main assailants but the petitioner had no such complicity, therefore, it was required from the learned trial court to see as to what complicity of the petitioner had transpired from the record and whether the complicity so transpired constitutes any offence against the petitioner. The learned trial court has not examined the case in this perspective, which resulted in causing a grave injustice to the petitioner.
17. In view of the aforesaid, the impugned order dated 20.07.[SECTION]1 cannot be upheld.
18. The petition is, accordingly, allowed. The impugned order dated 20.07.[SECTION]1 is quashed. The learned trial court is directed to reconsider the matter in the light of the observations made herein above and pass a fresh order in accordance with law.
Order Date :- 21.11.[SECTION]1 shailesh