1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Prahlad Sharma Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1675/2009) S.B. Criminal Revision Petition under Section 397/401 of Cr.P.C. against the impugned order dated 29.10.2009 passed by Special Judge, Special Court (Women Atrocities and Dowry Prohibition Cases) Jaipur City, Jaipur in Sessions case No.78/2009 whereby the charges under Section 302 read with Section 120-B and Section 201 IPC have been framed against the accused petitioner. Date of Order :- February 9th, 2010 PRESENT HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Ravi Yadav, for the accused-petitioner. Mr.Javed Chaudhary, public prosecutor. Aggrieved by the order dated 29.10.2009 passed by the Special Judge, Special Court (Women Atrocities and Dowry Prohibition Cases) Jaipur City, Jaipur, whereby the learned Judge has framed the charges against the accused-petitioner for offences under Sections 302/120-B and 201 IPC, the accused-petitioner has approached this Court. In brief the case of the prosecution is that on 22.05.2009, a FIR, FIR No.117/2009 was lodged by one Ravinder Kumar, SHO, Bajaj Nagar, Jaipur at Police Station Jyoti Nagar, Jaipur. According to the said FIR, on 21.05.2009, one Dr. Krishan 2 Kumar Mangal had lodged a report about his brother, Mukesh Mangal, who was missing. Subsequently, the body of Mukesh Mangal was discovered in a flat located at Jyoti Nagar, Jaipur. On the basis of the said report, the aforesaid FIR was registered for offences under Sections 302/120-B and 201 IPC. During the course of investigation, one Bajrang Lal was apprehended and was interrogated by the Police. During his interrogation, he revealed that he is the petitioner's servant and servant of his son, Anoop. According to Bajrang Lal, Anoop and Vandna had business rivalry with Mukesh Mangal. Therefore, Anoop, Vandna and Bajrang Lal had conspired to murder Mukesh Mangal. In pursuance of the said conspiracy, Mukeksh Mangal was killed. He further revealed that after the murder, when he called up the petitioner, the petitioner told him to get rid of the dead body. However, the dead body was not sifted out of the flat where the murder had taken place. Besides this interrogation, the Police also discovered that Banjrang Lal had made an extra-judicial confession before one Balchand. Even to Balchand, Bajrang Lal had said that the petitioner had instructed him to get rid of the dead body. On the basis of interrogation and on the basis of the extra-judicial confession, the Police filed the challan against the petitioner for offences under Sections 302/120-B and 201 IPC. Vide order dated 29.10.2009, the learned trial court has framed the charges for the said offences against the petitioner, as mentioned above. Hence, this petition before this Court. Mr. Ravi Yadav, the learned counsel for the petitioner, has vehemently contended that it is a settled principle of law that at the time of framing of the charges, the trial court should not act as a 3 mute witness, or as a mouth-piece of the prosecution. In fact, the trial court is required to assess the evidence to the limited extent of seeing if a strong suspicion exists against the alleged accused or not. However, in the present case, the learned trial court has not sifted through the evidence to examine the extent of suspicion against the present petitioner. Therefore, the trial court has failed to discharge a duty or to invoke a jurisdiction which is clearly vested in it. Secondly, even if the case of the prosecution were taken to be true, even then there is no evidence against the petitioner for offences under Section 302/120-B IPC. Only three pieces of evidence exist against the petitioner : firstly, the statement of Bajrang Lal given during the interrogation; Secondly, the extra-judicial confession made by Bajrang Lal to Balchand; thirdly, the call details which clearly show that the petitioner had spoken to his son, Anoop, and to Bajrang Lal, his servant. However, none of these evidence can create a strong suspicion against the petitioner for offences under Section 302/120-B IPC. For, the interrogation notes of Bajrang Lal cannot be read against the petitioner. Secondly, the extra judicial confession is limited to the point that the petitioner instructed Bajrang Lal to get rid of the body. Thirdly, it is not unusual for a person to speak to his son or to his servant. Therefore, call details discovered by the Police do not unerringly point towards the guilt of the petitioner. Thus, the learned Judge is not justified in framing the charges for offences under Sections 302/120-B and 201 IPC. Lastly, since the body was lying at the scene of the crime, the offence under Section 201 IPC is not made out. For, there is no evidence to show that the body was removed and the evidence of offence was destroyed. Therefore, no offence under Section 201 IPC is made out against the petitioner. 4 On the other hand, Mr. Javed Chaudhary, the learned public prosecutor, has strenuously, contended that at the stage of framing of the charge, the trial court is concerned only with the existence of a prima facie case against the alleged accused. The trial court, at the initial stage of framing of the charge, cannot scrutinize the evidence. Secondly, although the interrogation of Bajrang Lal cannot be read against the petitioner, but the alleged extra-judicial confession made by Bajrang Lal to Balchand clearly points the needle of suspicion towards the petitioner. Thus, the learned public prosecutor has supported the impugned order. Heard the learned counsel for the parties, perused the impugned order, and examined the charge-sheet filed by the Police. What should be the role of the trial court while framing the charge has elicited a number of responses from the Hon'ble Supreme Court and from this Court : In the case of Union of India vs. Prafulla Kumar Samal [(1979) 3 SCC 4] the Apex Court laid down certain principles in the following words:- Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 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. 5 (3) 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. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office 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. In the case of Vishwa Kumar Sharma Vs. State of Rajasthan [2006 (2) W. L. C. (Raj.) 268], this court also dealt with the interpretation of Section 228 Cr.P.C. and observed as under:- In the case of discharging the accused or in the case of framing of the charge, the Judge is required to take certain concrete steps: firstly, to “consider the record of the case and the documents submitted therewith.” Secondly, to hear both the Prosecution and the accused. Thirdly, after hearing both the parties, in case he “considers that there is not sufficient ground for proceeding against the accused”, then he shall discharge him. Fourthly, in case the accused is to be discharged, the Judge must record reasons for such discharging. But, in case “after such consideration and hearing, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence” (emphasis added), then he should follow the procedure laid down in Section 228 of the Code. Thus, the Judge must consider if there is sufficient evidence to formulate an opinion that the offence has been committed by the accused. Consideration of the facts has to be a substantial consideration and not an illusionary one. To consider means to examine with judicious 6 mind. The phrase “of the opinion” has been interpreted to mean to come to a conclusion after weighing the evidence. Of course, at the moment of framing of charge, the Judge should not undertake a meticulous examination of the evidence. But nonetheless, he must sift the evidence to see if there is “sufficient” evidence to constitute the ingredients of the offence and to connect the accused to the offence. “Sufficient” has been interpreted to mean the existence of “grave suspicion” and not merely likelihood or mere “suspicion”. Since charge is framed after hearing both the parties and after examining the evidence produced by the Investigating Agency, more than mere ‘suspicion’ should exist in order to warrant the framing of the charge. A “grave suspicion” should connect the accused to the alleged crime. In the case case of Vishwa Kumar Sharma (supra), this court further differentiate between “taking of cognizance” and “framing of charge” and observed as under:- Of course, both the acts require the application of judicious mind. However, the former is done without hearing both the parties. Cognizance is taken without the accused being heard. The latter is done after hearing both the parties. In the former, the Judge examines the evidence to see if an offence has been committed. In the latter, the Judge examines the commission of the alleged crime by the accused. In the former, mere ‘suspicion about the commission of an offence’ is enough for taking of the cognizance. In the latter, “grave suspicion about the commission of the crime by the accused” should exist before a charge can be framed. In the former, the Judge is not supposed to sift through the evidence. In the latter, a limited sifting of the evidence is permissible. Therefore, when the phrase “prima facie evidence” is used, it is used for two different sets of examinations at two different stages of the criminal process. One has to realize that the trial progresses through different stages. Hence, appreciation of evidence has to be of different quality. While at the stage of cognizance it is mere ‘suspicion’, at the stage of framing of charge it is ‘grave suspicion’, and at the end of trial, it is ‘a critical analysis and a meticulous examination of the entire evidence produced by the Prosecution and the accused’. Therefore, the appreciation of evidence at the stage of framing of charges is at 7 micro level; at the end of the trial it is at macro level. Hence, the mental level of appreciation changes at every stage of the criminal process: from a cursory appreciation to a critical one. In the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra [JT 2008 (6) SC 299] the Hon’ble Supreme Court has held thus:- 15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section 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 facie 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, makes a conviction reasonably possible. Similar view has been expressed by this Court in the case of Gurmeet Singh Bagga Vs. State of Rajasthan & Anr., in S.B. Criminal Revision Petition No.721/2004 decided on 30th October, 2009. Thus, it is well settled principle of criminal jurisprudence that at the time of framing of the charge, the trial court should not act either as a mute witness or as a post office for the prosecution or 8 as the mouth-piece of the prosecution. At the time of framing of the charge, the trial court has to be aware of the fact that the accused is entitled to a fair trial under the Constitution of India. Thus, in order to ensure fairness, the trial court has to sift the evidence to the limited extent of discovering whether strong suspicion exists against the alleged accused or not ? It is further required to examine the record to see if the ingredients of the alleged offence exist or not ? Lastly, it has to correlate the alleged conduct of the accused to the ingredients of the offence. In the present case, admittedly, Bajrang Lal's interrogation cannot be read against the petitioner. Therefore, the first piece of evidence relied by the Investigating Agency against the petitioner is not available to them. The call details as submitted by the Police are also not helpful, as it is not unusual for a person to speak to his son or to his servant. Merely because the petitioner had called up his son and his servant, would not lead to the conclusion that the petitioner was involved in the alleged murder. After all the contents of the call are unknown. Therefore, what conversation had taken place between the petitioner and his son or servant cannot be deciphered. The only evidence that can be read against the petitioner at this juncture is the alleged extra-judicial confession made by Bajrang Lal to Balchand. According to Balchand Statement recorded under Section 161 Cr.P.C., Bajrang Lal had informed him that Mukesh Mangal was killed by Anoop and Vandna and few other 9 persons included Bajrang Lal himself. After the murder, the petitioner had instructed him to get rid of the dead body. Even if this extra-judicial confession were taken to be true, at worse, it would point to disappearing of evidence. Thus, it would point to the commission of offence under Section 201 IPC. However, considering the fact that the dead body was not removed from the scene of the crime, at worse, the extra-judicial confession points to an attempt to get rid of the evidence. Thus, the only offence for which a strong suspicion exists against the petitioner is for offences under Section 201 read with Section 511 IPC. Hence, the learned Judge was not justified in framing of the charges against the petitioner for offences under Sections 302/120-B and 201 IPC. For the reasons stated above, the petition is, hereby, allowed; the impugned order dated 29.10.2009 is, hereby, quashed and set aside. The learned trial Judge is directed to frame the charges against the petitioner for offences under Section 201 read with Section 511 IPC. However, it is clarified that the observations made above, should not prejudice the decision of the trial court. The trial court is directed to decide the case on its own merit. (R.S.CHAUHAN)J. Manoj Solanki-