HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 14 Case :- CRIMINAL REVISION No. - 744 of 2010 Revisionist :- [ENTITY] Opposite Party :- State Of U.P. Counsel for Revisionist :- [ENTITY],[ENTITY],[ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY],[ENTITY] With Case :- CRIMINAL REVISION No. - 813 of 2010 Revisionist :- [ENTITY] Opposite Party :- State Of U.P. Counsel for Revisionist :- [ENTITY] Counsel for Opposite Party :- Govt. Advocate,[ENTITY],[ENTITY] Hon'ble Mrs. [ENTITY],J.
I have heard Sri [ENTITY], Senior Advocate, assisted by Sri [ENTITY], counsel for the revisionist, learned A.G.A. for the State and Sri [ENTITY] and [ENTITY], counsel for the complainant.
2. The [CASE NUMBER] has been preferred against the Judgment and order dated 22.12.2009 passed by the Special Judge, E.C. Act, District Mirzapur in [CASE NUMBER], State Vs. [ENTITY] and another under [SECTION] [ACT] rejecting the discharge application of the revisionist. This revision has been connected with [CASE NUMBER], [ENTITY] Vs. State of U.P., which has been preferred against the Judgment and order dated 17.2.2010 passed by the Special Judge, E.C. Act, Mirzapur in [CASE NUMBER], State Vs. [ENTITY] and another under [SECTION] [ACT] rejecting the discharge application of the revisionist. Thus, both the revisions are arising out of same sessions trial, hence, they are connected although these revisions have been preferred against different orders.
3. The revisionist [ENTITY] in [CASE NUMBER], moved a discharge application before the trial court stating that the occurrence is being alleged to have taken place on 25.5.1980 at 8.30 p.m. on which date and time the accused was in district jail Chaukaghat for offence under [SECTION], [SECTION] of [ACT], Police Station G.R.P. Mugalsarai by the order of the Railway Magistrate, Varanasi from here he was released on bail on 29.5.1980. Since he was in jail at the alleged time and date of the occurrence, he claimed parity with the accused [ENTITY] and [ENTITY], who were discharged by this Court on the same ground.The accused submitted certain papers, vide list 108 'Kha', being information supplied by the Jail Superintendent, Varanasi and copy of the hawalat register alleging his presence in the jail at the time of occurrence. After hearing the discharge application the trial court rejected the discharge application, vide order dated 22.12.2009.
4. The accused revisionist [ENTITY] in [CASE NUMBER] moved a discharge application stating that the eye witnesses have died and in fact there is no evidence on record by virtue of which charges can be proved against the accused, hence, the accused may be discharged. This application also was dismissed on 17.2.2010 and date was fixed for framing charges.
5. Brief facts, according to the F.I.R., is that the complainant [ENTITY] lodged an F.I.R. stating that his son [ENTITY] was running a private clinic at Mohalla Lal Diggi, District Mirzapur. When Dr. [ENTITY] was sitting in his clinic and was examining the patients on 25.5.1980 at about 8.30 p.m., suddenly three unknown persons entered into his room and shot Dr. [ENTITY] due to which he died on the spot. At that time, one man was threatening people outside the room, two men were standing near the jeep and the driver was sitting in the jeep, which was in starting position. After murdering Dr. [ENTITY], all the miscreants sat in the jeep and fled towards the west. On the basis of this report, investigation started.
6. During investigation, the names of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and others came into light. Accused [ENTITY] and [ENTITY] were discharged, earlier accused [ENTITY] and [ENTITY] were facing trial, who moved discharge application, which was rejected.
7. The complainant approached the Hon'ble Apex Court filing [CASE NUMBER] in which the Hon'ble Apex Court directed this Court to decide [CASE NUMBER] as expeditiously as possible preferable within two months from the date the order was passed.
8. Learned counsel for the complainant has argued that the scope of the revisional court is limited inasmuch as the revisional court can only look into the illegality, impropriety and irregularity of the impugned order.
9. In reply, the learned counsel for the revisionist has argued that the scope of this Court is not confined but in fact this Court has wide powers in asmuchas even while exercising the powers of a revisional court, this Court does not cease to exercise the inherent power vested in the court under [SECTION] [ACT] In this respect, counsel for the defence has placed reliance upon [PRECEDENT] [PRECEDENT], in which it has been held that the inherent powers should be exercised to prevent the abuse of the process of any court. Process is a general word, meaning in effect anything done by the court. The framers of the Code could not have provided which all cases should be considered as abuse of the process of the court.
10. In the same context, counsel for the revisionist has placed reliance upon [PRECEDENT], [PRECEDENT] represented by Inspector of Police, in which it has been held that the revisional powers of the High Court and the sessions court are pointed out in the Code separately; from a perusal whereof, it would appear that the High Court exercises larger power. It has further been held that the powers can be invoked by the High Court to decide as to whether the continuance of the proceedings against the revisionist would be an abuse of the process of the court or not. In [PRECEDENT], the word 'propriety' has also been interpreted by the Apex Court to mean "fitness; appropriateness; aptitude suitability; appropriateness to the circumstances or conditions; conformity with requirement, rule or principle; rightness, correctness, justness, accuracy".
11. The counsel for the revisionist has also argued that the statutory powers of the revisional court stand enlarged when the High Court exercises the power of revision. Counsel for the revisionist has also placed reliance upon [PRECEDENT], [PRECEDENT], in which it has been held that it would be a sheer waste of public time and money to permit the proceedings to continue against the respondent, when there is no material on the record on which any tribunal could reasonably convict them for any offence connected with the assault on the complainant. This is one of these cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking.
12. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice.
13. Counsel for the complainant has vehemently argued that there was sufficient evidence for framing charges against the accused and the learned lower court has rightly rejected the application for discharge moved by the revisionists.
14. In reply counsel for the revisionists has argued that the prosecution has to disclose the commission of the offence and the connection of the accused with the crime.
15. In [PRECEDENT], the Hon'ble Apex Court has laid down that if the trial Judge comes to the conclusion that there is sufficient ground to proceed, he will frame charge, and evidence and probability need not be weighed that is to be done after the trial begins. At the stage of considering of discharge application, the court is not to see whether trial would end in conviction or acquittal. In the same context, the Hon'ble Apex Court in [PRECEDENT], [PRECEDENT], has laid down that at the stage of consideration of discharge application, the court has to proceed with the assumption that materials brought on record by the prosecution are true. As such, the court has only to find out whether the facts brought on record by the prosecution are true or not. In paragraph 20 of the said Judgment, the Hon'ble Apex Court has held as follows:-
"We have bestowed our consideration to the rival submissions and the submissions made by Mr. [ENTITY] 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 there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, 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. 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. Reference in this connection can be made to a recent decision of this Court in the case of [PRECEDENT], in which, after analyzing various decisions on the point, this Court endorsed the following view taken in [PRECEDENT]:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
16. At the stage of framing of the charge the court has to see only the prima facie evidence and charge can be framed even on the basis of strong suspicion founded upon materials before the Court as has been laid down in [PRECEDENT], [ENTITY] and others State of U.P. and another. At the time of framing of the charge, after considering the record of the case, document submitted therewith and hearing the parties, if the court considers that there are grounds for presuming that the accused has committed offence, the charges have to be framed as has been laid down in [PRECEDENT], [PRECEDENT].
17. As far as the case of [ENTITY] is concerned, he has taken the plea that he was detained in jail by the order of the Railway Magistrate, Mughalsarai in [CASE NUMBER], thus, he was not at the place of occurrence at the relevant time and date as is alleged by the prosecution
18. It is well settled law that the defence of the accused cannot be looked into at the time of framing of the charge. Thus, this plea taken by the accused [ENTITY] that he was in jail at the time of occurrence neither can be looked into nor can be relied by the court as far as the discharge of the accused [ENTITY] is concerned. But as far as the evidence in the case is concerned, which relates to accused [ENTITY] and [ENTITY], it is common. Thus, the matter relating to the discharge of [ENTITY] and [ENTITY] cannot be segregated.
19. One limb of the argument of the complainant was that the file of the case was got misplaced by the accused persons due to which trial was delayed and it was the accused persons, who could be benefited by the misplacement of the record and who managed to get the record misplaced. Thus, the accused persons cannot take the benefit of their own wrong.
20. In [CASE NUMBER], a counter affidavit has been filed by the Dr. [ENTITY] stating that one of the accused, namely, [ENTITY] being sitting M.L.A. from Gyanpur Constituency, [ENTITY] managed to hide the records of the case till 14 years during which the trial of the case was withheld. Thus, he cannot be permitted to take benefit of his own wrong. Inasmuch as the occurrence took place on 25.5.1980. Since then more than 34 years have passed and as time passes by, most of the evidence in the case will not be available for which wrong the accused cannot be benefited.
21. Counsel for the revisionist has argued that the complainant, namely, [ENTITY], has died and the eye witnesses [ENTITY], [ENTITY] and [ENTITY], who have named both the revisionists have also died. But, the counsel for the complainant has argued that a long period of more than 34 years has passed since the occurrence, still there is overwhelming evidence that there are witnesses who have seen the revisionists and can recognize them when they come in front of witnesses. Counsel for the complainant has argued that the matter cannot be nipped in the bud and the evidence can only be produced when opportunity is given to the prosecution to produce the witnesses, who will definitely be in a position to recognize the revisionists when they stand before the court. In this regard, he has placed reliance upon [PRECEDENT], in which it has been held that though identification for the first time in court is held to be a weak evidence but delay in holding identification can be satisfactorily explained.
22. Counsel for the complainant has argued that the revisionists were absconders and due to this reason the Investigating Officer could not hold Test Identification Parade and the revisionists are taking benefit of their own wrong. In support of his arguments, he has placed reliance upon [PRECEDENT], [PRECEDENT], in which consequences of delay in investigation have been discussed. In the same context, the counsel for the complainant has placed reliance upon [PRECEDENT], [PRECEDENT], in which it has been held that if no attempt has been made to hold Test Identification Parade and identification has been done only in court and if the identification is corroborated by other eye witnesses, is also supported by confession, it would be acceptable.
23. Counsel for the complainant has also contended that the statement of witnesses including identification in court is substantive evidence as has been held by the High Court in [PRECEDENT] It is settled law that the defence of the accused or any material on record by the accused cannot be looked into as I have discussed earlier. The identification, for the first time, in court is of weak character as has been laid down in [PRECEDENT], but if this identification is held for the first time in the court and is corroborated by other evidence, it may be looked into by the courts.
24. Counsel for the complainant has argued that there are other witnesses, who have stated that they can recognize the miscreants. On being confronted with this position counsel for the revisionists has argued that the witnesses not shown in the charge sheet upon whon the prosecution relies, cannot be produced in court.
25. I think the powers of court under [SECTION] [ACT] are not restricted and they do not come in the way. An affidavit has been filed by Dr. [ENTITY] stating that witnesses [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] were named in the charge sheet as eye witnesses interrogated under [SECTION] [ACT] But witnesses not nominated in the charge sheet are [ENTITY], [ENTITY] and [ENTITY], who have been interrogated by the Investigating Officer and have disclosed eye witness account of the occurrence. Their evidence is available on the case diary. [ENTITY] has stated that he does not know the names of the murderers but if they come before him, he can recognize them. Witness [ENTITY] has also stated that he cannot disclose the name of any of the murderers but if they come before him, he can recognize them by face. Witness [ENTITY] has also stated that he does not know the names of the murderers but he can recognize them by face and can identify them on seeing them. The witness [ENTITY] has stated that he had recognized the witnesses in the light and can recognize them on seeing them. Thus, all these four witnesses have not named the accused persons.
26. Counsel for the complainant has argued that death of witnesses, if any, is a subsequent event which cannot be looked into by this Court.
27. On the other hand counsel for the revisionists has argued that subsequent events have to be looked into and since all the eye witnesses who have named the revisionists have died, it would be futile exercise to conduct the trial because practically there is no evidence which could prove the incident. The counsel for the revisionists has also argued that presently there is no evidence, whatsoever available to the prosecution, on the basis of which the charge can be framed against the revisionists because as per [SECTION] of the [ACT] the public prosecutor opens his case by describing the charge and the evidence with the aid of which he proposes to prove the guilt against the accused. It has been argued that in the present case the public prosecutor can fulfil the first part of the section, i.e., he can describe the charge but he will not be in a position to apprise the court about the evidence to connect the revisionists with the crime and he will not be in a position to state the evidence which he proposes to adduce to prove the guilt of the accused. It has further been argued on behalf of the revisionists that the present case is one in which there is no sufficient ground to proceed against the accused as has been laid down by the Apex Court in [PRECEDENT], while dealing with [SECTION] and [SECTION] [ACT] The Apex Court has held as under:-
"Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trail to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under [SECTION] or [SECTION] of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. 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 stage 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. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial then on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under [SECTION] or [SECTION], then in such a situation ordinarily and generally, the order which will have to be made will be one under [SECTION] and not under [SECTION]."
28. Counsel for the revisionists has placed reliance upon [PRECEDENT], [PRECEDENT], in which it has been held that the impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its importance to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts.
29. The counsel for the revisionists has also argued that the role of the State is not justifiable in this case because, vide order dated 13.5.2010 the High Court directed the learned A.G.A. to verify about the death of three witnesses, namely, [ENTITY], [ENTITY] and [ENTITY] but the learned A.G.A. deliberately and wilfully flouted this order and did not obtain any information regarding the death of three witnesses.
30. In the counter affidavit filed in [CASE NUMBER], Dr. [ENTITY] has stated that while deciding to frame charges, the trial court cannot weigh the evidence and see whether the trial will end in conviction or acquittal. It is also being argued that the quality of evidence has to be looked into and inasmuch as the conviction can also be based on the sole testimony of one witness. It is true that sole testimony would be sufficient to convict an accused but the sole testimony has to be qualitative, reliable and not quantitative.
31. A perusal of the lower court record shows that the present revisionists, namely, [ENTITY] and [ENTITY], have been requesting the trial court to discharge them now and again. Inasmuch as on 12.11.2009, the accused [ENTITY] took plea of alibi and his prayer for discharge was rejected. Again the accused [ENTITY] moved similar application for his discharge on same ground, which was rejected on 22.12.2009. Again an application on behalf of both the accused, namely, [ENTITY] and [ENTITY] was moved before the trial court to discharge them, which prayer was again refused on 17.2.2010. Thus, accused [ENTITY] prayed for discharge three times and the accused [ENTITY] prayed for discharge one time. This last order was passed on 17.2.2010. I think there should be a limit for moving discharge applications by the accused inasmuch as more than 34 years have passed since occurrence and the evidence is yet to begin and charges are yet to be framed. The ground taken by the accused [ENTITY], which is common to [ENTITY] also, is that since all the eye witnesses, who have named the accused persons, have died, hence, there is no evidence to frame charges against the accused. These, being subsequent events have to be taken into consideration.
32. In [CASE NUMBER], an order was passed on 18.2.2010 by this Court allowing the learned A.G.A. to file counter affidavit as against the allegations of the revisionist [ENTITY] that witness [ENTITY], [ENTITY] and [ENTITY] have died. A counter affidavit was filed by the State sworn by [ENTITY] in which death of the eye witnesses was not confirmed and the same was based on his personal knowledge.
33. In para 36 of the counter affidavit filed by Dr. [ENTITY] filed in [CASE NUMBER], it has been specifically stated that a fact based on personal knowledge cannot be relied upon. Thus, as far as death of the complainant and witnesses is concerned, unless the police report is submitted to this effect during the course of trial, the same cannot be relied on. In para 16 of the affidavit filed in [CASE NUMBER], again the revisionist [ENTITY] has stated that eye witnesses have expired. In reply of that para, it has been stated in the counter affidavit sworn by Dr. [ENTITY] that the contents of para no. 16 of the affidavit are not admitted. A rejoinder affidavit was filed by the revisionist in which the contents of the affidavit were reiterated. Thus, the factum remains that the complainant has not admitted that the eye witnesses have died. If they have died, is a matter which can only be looked into by the trial court and not by the revisional court.
34. I do not think that it would be appropriate for the this court to inquire into and give a finding about the death of certain witnesses. The trial court has rightly held in its order dated 17.2.2010 that the factum of death of the witnesses can only be decided at the time trial when the death is confirmed by the prosecution. Thus, the ground taken by the revisionists that eye witnesses and the complainant have died, therefore, they are entitled to be discharged, has no legs to stand before this Court.
35. On what has been said above, the order of the trial court dated 22.12.2009 and 17.2.2010 passed in [CASE NUMBER] do not suffer from any irregularity, illegality or impropriety due to which [CASE NUMBER] are liable to be dismissed.
36. Accordingly, [CASE NUMBER] are dismissed.
Date:-25.9.2014 [ENTITY]