1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Devi Singh Vs. State of Rajasthan (S.B. Criminal Revision Petition No.1421/2009) Date of Order :- 12th October, 2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Satyapal Poshwal, for the petitioner. Ms.Alka Bhatnagar, Public Prosecutor. The petitioner has challenged the order dated 04.09.2009 passed by the Additional Sessions Judge No.1, Bayana, Bharatpur whereby the learned Judge has framed the charges for offences under Sections 147, 148, 149, 332, 333, 353 & 307 IPC & under Sections 27(a) & 8/20 NDPS Act and under Section 136 of Rajasthan Electricity Act against the petitioner. Mr. Satyapal Poshwal, the learned counsel for the petitioner, has vehemently contended that the petitioner has been falsely implicated in this case. The petitioner had gone to a flour mill which is very close to the land where allegedly marijuana (गांजा) crops were standing. Upon hearing altercation taking place in the field, he went there as a spectator. The police had asked him to turn as an approver, but he has refused to do so. Therefore, he has been falsely implicated in the present case. Secondly, the learned Judge has erred in charging the petitioner both for offences under Section 149 IPC and under Section 307 read with Section 34 IPC. According to him, there is no evidence to show that the petitioner had assaulted Jetha Ram. Moreover, in case the allegation is that he was a part of an 2 unlawfully assembly, then he could not be charged for offence under Section 307 read with Section 34 IPC. Lastly, there is no evidence against him for having committed an offence under Section 136 of Electricity Act. Neither the land belongs to him, nor there is any allegation that he had committed theft of electricity. Therefore, the ingredients of Section 136 of Electricity Act are conspicuously missing qua the petitioner. On the other hand, Ms. Alka Bhatnagar, the learned public prosecutor, has contended that the jurisdiction for framing charge is an extremely limited one. At the time of framing charge, the court cannot look into the plausible defence pleas which can be raised by the accused during the course of the trial. Therefore, the plea of the petitioner that he was present as a spectator cannot be entertained at the present moment. Secondly, she has frankly conceded and in the opinion of this Court rightly so, that the charges under Sections 149 & Section 307 read with Section 34 IPC cannot go hand in hand. However, thirdly, charge under Section 136 of Electricity Act is made out against the petitioner. According to the FIR, the petitioner had admitted that the land belongs to him and the crops also belong to him. There are certain statements which show that the electricity was being utilized unauthorizedly. Therefore, prima facie a case does exist against the petitioner for offence under Section 136 Electricity Act. Hence, she has supported the impugned order. Heard the learned counsel for the parties, perused the record, and examined the impugned order. 3 It is, indeed, a settled position of law that at the time of framing of the charge, the trial court is concerned only with the existence of a 'strong' prima facie case. Although the trial court is empowered to shift through the evidence, but it cannot minutely examine the evidence. At this initial stage, it is debarred from considering the defence pleas which the accused-person can plausibly raise during the course of the trial. Therefore, the defence of the petitioner that he was present as a spectator and not as a participant, cannot be considered at this preliminary stage. Hence, the first contention raised by the learned counsel for the petitioner is clearly untenable. Section 149 IPC deals with punishment for being a member of an unlawful assembly, whereas Section 34 IPC creates vicarious liability. But Section 34 IPC is not a penal provision. Since the allegation of the prosecution is that an unlawful assembly has descended and had attacked the complainant party, clearly a 'strong' prima facie case for offence under Section 149 IPC does exist. However, as unlawful assembly was involved, obviously Section 34 IPC cannot be read into the present case. Therefore, the trial court has apparently erred in framing a charge for offence under Section 307 read with Section 34 IPC. In fact, the said charge should have been framed under Section 307 read with Section 149 IPC. According to the FIR, the petitioner had claimed that the crop was his. Although there are witnesses like Ramji Lal and Vijjo Singh, who have said that the land belongs to Amar Chand and who have also said that Amar Chand had committed theft of electricity, 4 but it is for the trial court to appreciate whether a charge under Section 136 of Electricity Act has been established beyond a reasonable doubt against the petitioner or not. Therefore, at this moment, this Court is of the opinion that it should not disturb the charge framed under Section 136 of Electricity Act. For the reasons given above, the order dated 04.09.2009 is modified only to the limited extent that the charge for offence under Section 307/34 is, hereby, modified to read as charge for offence under Section 307/149 IPC. With these observations, this petition is, hereby, disposed of. (R.S.CHAUHAN)J. Manoj Solanki-