[CASE NUMBER] IN THE COURT OF GORAKH NATH PANDEY, ADDITIONAL SESSIONS JUDGE, WEST DISTRICT, TIS HAZARI COURTS, DELHI. [CASE NUMBER] CNR No.[CASE NUMBER] In re: 1. [ENTITY], S/o late Sh. [ENTITY], 2. Smt. [ENTITY], W/o late Sh. [ENTITY], R/o Village Kakrola, New Delhi. Petitioners Versus [ENTITY] Respondent Date of filing of revision petition : 04.08.2018 Date of arguments of revision petition: 17.09.2019 Date of pronouncement of judgment : 25.09.2019 Decision : Dismissed JUDGMENT:
1. This revision petition under [SECTION] [ACT] is directed against the order dated 05.05.2018 passed by the Ld. M.M.06 (West) in case FIR No.930/99 registered at P.S. Uttam Nagar whereby the charge for the commission of offence punishable under [SECTION] [ACT] was framed against the petitioners.
2. The brief facts of the case is that the plot measuring 120 sq. yards bearing no.268, situated in khasra no.13/5, Village Kakrola, Delhi was purchased by Smt. [ENTITY]/complainant from one [ENTITY] on the basis of GPA and receipt dated 04.12.90. The complainant alleged in her complaint that when she visited at the plot alongwith her husband and found that one person namely [ENTITY] alongwith two other persons was found digging at the plot. The complainant asked those persons why they are digging and [ENTITY] told her that the said plot is allotted to his mother [ENTITY]. The complainant made a call to the police and matter was investigated. After the investigation, charge sheet was filed against accused [ENTITY], [ENTITY], [ENTITY] and [ENTITY].
Vide order dated 21.08.2004, it was observed by Ld. M.M. that the case has not been properly investigated and IO fail to take into possession the documents of the allotment of the said plot from the office of BDO to find out the real person to whom the plot was allotted and the matter was sent back for further investigation. During the further investigation of the case, those documents were obtained and thumb impression of Smt. [ENTITY], W/o Sh. [ENTITY], one of the accused and [ENTITY], W/o [ENTITY] from whom the complainant purchased the plot were obtained. The thumb impression of both the ladies and documents were sent to FSL for comparison. After obtaining the result, it was reported that infact the plot was allotted to [ENTITY], W/o [ENTITY] by BDO and [ENTITY], W/o Sh. [ENTITY] has committed the fraud. Vide order dated 28.03.2005, Ld. M.M. ordered for discharging all the above named accused persons. After the further investigation of the present case, supplementary charge sheet was filed against [ENTITY] and [ENTITY] for the offence under Section [SECTION]
3. Vide impugned order dated 05.05.2018, the Ld. Trial Court framed charges against the petitioners under [SECTION] [ACT] on the basis of material on record. Aggrieved therefrom, this revision petition is filed by the petitioners.
4. The counsel for the petitioners assailed the impugned order contending that the petitioner no.2 being the original allottee has been charged against the settled principles of law and in complete ignorance of the documents, material placed on record, leading to gross injustice to the petitioners; no offence is made out against the petitioners in the supplementary charge sheet; Ld. Trial Court completely misdirected itself by ignoring the Fingerprints Bureau Report wherein it has been stated the thumb impressions on the possession certificate are of petitioner no.2; impugned order is apparently illegal, unjust and arbitrary; Ld. Trial Court failed to exercise its jurisdiction vested in it by not appreciating the original documents in favour of the petitioner no.2 placed on record by the prosecution; original accused [ENTITY] never placed on record any document of title dated 28.05.1985 in her favour, nor did the IO while submitting the supplementary report under [SECTION] [ACT], yet the Ld. M. M. passed the impugned order in mechanical manner without even looking into the material on record; Ld. M. M. erred in ordering for framing charge against the petitioners despite the fact that no case was made out against them; Ld. Ld. M. M. has passed the order in haste and without going through the actual matrix of the case; no case is made out against the petitioners and there are no specific allegations against the petitioners. The counsel for the petitioners has argued that the impugned charge against the petitioner is bad in the eyes of law and the same is liable to the set aside
5. On the other hand, while supporting the impugned order, Ld. Addl. PP for State has submitted that there is no infirmity or illegality in the impugned order and therefore, no interference is called for.
6. I have heard the counsel for petitioners and Ld. APP for State. Trial court record has also been perused.
7. Before adverting to the facts of the case, it would be appropriate to refer to the guidelines laid down by the Superior Courts to be kept in mind at the stage of framing of charge.
In [PRECEDENT], the Hon'ble Apex Court laid down the following principles:
"(i) That the Judge while considering the question of framing the charges under [SECTION] of the Code 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;
(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 test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult 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 while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused; and
(iv) That in exercising his jurisdiction under [SECTION] of the Code the Judge which under the present Code is a senior and experienced Court can not act merely as a PostOffice 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
In [PRECEDENT], the principles enunciated above has been reiterated and it was held as below:
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under [SECTION] of the [ACT], 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 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 while giving 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] of the [ACT], the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the board 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 conducting a trial.
14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant."
Further, Hon'ble Supreme Court in [PRECEDENT] in para no.19 and pare no.21 held as below: "19. It is clear that 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 only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves 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.
21. On consideration of the authorities about the scope of [SECTION] and [SECTION] of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under [SECTION] [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 other.
(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 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 disclose 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 sell whether the trial will end in conviction or acquittal."
8. Discussing the law on consideration of charge, Hon'ble Delhi High Court in the case of Prashant Bhasker v. [ENTITY] in [CASE NUMBER] decided on 22.09.2009 held:
"17. It needs no elaboration that at the stage of framing of charge, the court is required to evaluate the materials and documents which have been placed on record by the prosecution and taken at the face value, whether existence of the ingredients constituting the alleged offence or offences are disclosed. It is for this limited purpose alone that the court is permitted to sift the evidence. In para 7 of the judgment in [PRECEDENT] the Apex Court defined the parameters of the scope and consideration thus:
"7. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on b the prosecution. In the [PRECEDENT] this court observed that at the initial stage of the framing of a charge, if there is a strong suspicionevidence 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. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by crossexamination 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. In [PRECEDENT], this court after considering the scope of [SECTION] that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a postoffice to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that 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 weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their facevalue establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under: (1) That the Judge while considering the question of framing the charges under [SECTION] of the Code 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. (2) 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. (3) The test to determine a prima facie case would natrurally depend upon the facts of each case and it is difficult 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 adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under [SECTION] of the Code of judge which under the present Code is a senior and experienced judge cannot act merely as a postoffice or a mouth piece 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Xxxxxx From the above discussion it seems well settled that at the [SECTION] stage 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 disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution stated as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied)
18. The pronouncement of the Apex Court reported at Chitresh Kumar Chopra v. [ENTITY] on this very issue can also be usefully adverted to and reads thus: " 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 therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."
19. In a subsequent judgment reported at [PRECEDENT] a threeJudge Bench of the Supreme Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus:
" If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though the conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into' the material brought on record by the prosecution has to be accepted as true at that stage."
XXXXXXXXXXX
24. It now becomes necessary to consider the material which was laid by the prosecution before the learned trial court. Two contradictory statements recorded by the investigating officer of the complainant as well as his son both of whom claim to be eye witnesses, which were separated by a period of three months, have been placed on record. The first statement recorded on the very next date after the incident, has named only two persons i.e. Shri [ENTITY] and his brother [ENTITY] and is categorical that no other person is involved in the incident. A second statement recorded several months after the incident on 10th July, 2006 has sought to rope in the present petitioner. A graphic description of the alleged incident containing improvements in all material particulars is laid out in which even a role has been attributed to the petitioner. Scrutiny of the record which has been placed before this court would also show that there is no other material on the record at all placed along with the charge sheet under [SECTION] of the [ACT] before the trial court to show the presence of the petitioner or to connect him with the crime.
25. These statements/supplementary statements of the witnesses recorded by the investigating officer make to mention about the earlier statement recorded on 6th April, 2006. Neither of these statements even attempts to explain the circumstances in which the second statement was being made or the reason thereof.
The very gap of three months between the incident and statements by itself renders the same suspect and unsafe for reliance.
26. In similar circumstances, this court in the judgment pronounced at [PRECEDENT] held that while undertaking the permissible and necessary exercise of sifting of the materials and particularly keeping in mind the existence of two contradictory statements, a charge cannot be framed based thereon. The court observed that the subsequent statements were not only contradictory but unsafe as well and that the court cannot be expected to accept one version over another. It was held that the court would be justified in concluding that the version supporting the discharge of the petitioner is to be preferred. In the present case as well, the previous statement has completely ruled out any complicity of the accused person".
9. The charge sheet has been filed against the petitioners and vide impugned order dated 05.05.2018, the petitioners have been charged for the offence under [SECTION] [ACT].
10. I have gone through the charge sheet, complaint of the complainant and other materials/documents of the property in question on record on the touchstone of the principles laid down by the Superior Courts, there can be no doubt that there exist the grounds to presume that the petitioner has committed the offences under [SECTION] of [ACT]. At this stage, the case of the prosecution can not be thrown out by disbelieving the allegations and the material on record brought by way of charge sheet. It is further observed that as per the charge sheet, the petitioners have executed the documents though the property does not belong to them.
11. In the light of above discussions, I find no infirmity in the impugned order passed by the Ld. MM and the same does not warrant for any interference. The revision petition is without merits and is, accordingly, dismissed.
12. Trial court record be sent back alongwith the copy of the judgment. File of revision petition be consigned to record room.
[ENTITY] Date: 2019.09.26 15:43:05 +0530 Announced in the open court ([ENTITY]) on 25.09.2019 Addl. Sessions Judge (West) Tis Hazari Courts, Delhi.