IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revisions No.99, 127, 128, 129, 130, 131 and 163 of 2002 Date of decision: 9th July, 2008. 1. Cr.Revision No.99 of 2002. State of H.P. Versus Inder Singh & Others 2. Cr.Revision No.127 of 2002. State of H.P. Versus Laxmi Singh & Others 3. Cr.Revision No.128 of 2002. State of H.P. Versus Mohan Singh & Others 4. Cr.Revision No.129 of 2002. State of H.P. Versus Sewa Ram & Others 5. Cr.Revision No.130 of 2002. State of H.P. Versus Surat Singh & Others 6. Cr.Revision No.131 of 2002. State of H.P. Versus Pratap Singh & Others 7. Cr.Revision No.163 of 2002. State of H.P. Versus Prem Chand & Others Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellant: (See over-leaf) For the Respondents: (See over-leaf) Dev Darshan Sud,J. These revision petitions are disposed of by a common order as they involve a common question of 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 law. It is unfortunate that the revision petitions have been placed before this Court after a period of six years after the order of discharge by the learned Special Judge. I have been informed at the bar that some of the respondents in all the petitions, namely; Prem Chand Yashwant Singh, Sant Ram and Yogender Mohan, have died. I must also note with consternation that the order of remand at this stage will not only prolong the agony of the respondents before me but would also result in interminable delays. I cannot persuade myself to hold that the brevity which the Special Judge has followed in passing the order can be supported in law. Although he has applied the correct principles of law applicable that is to say that charge does not have to be framed merely because the prosecution has filed the challan; but the judgment does not state the reasons for not accepting the contention of the prosecution nor specifies the arguments put forth by the respondents. In Niranjan Singh Karam Singh Punjab, Advocate vs. Jitendra Bhimraj Bijjaya and Others, (1990)4 SCC 76, on the basis of entirety of the case law considered by the Supreme Court, the following principles were laid down:- “6.(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to 3 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 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 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 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 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. 4 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.” To similar effect are the judgments of the Supreme Court in State of M.P. vs. S.B. Johari and Others, (2000)2 SCC, 57 and Dilawar Balu Kurane vs. State of Maharashtra, (2000)2 SCC 135. The Supreme Court has again reiterated: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, 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 5 in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, 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 conducting a trial (see Union of India v.Prafulla Kumar Samal, (1979)3 SCC 5). These principles have been recognized and established as precedents in State of U.P. Through Central Bureau of Investigation vs. Dr.Sanjay Singh and Another, 1994 Supp(2) SCC, 707 and State of Maharashtra vs. Priya Sharan Maharaj and Others, (1997)4 SCC 393. The principle of law does not need burdening with more precedent. It was the duty of the learned Special Judge/Sessions Judge to have at-least indicated prima facie some reasons as to why the charges against the respondents could not be framed. Learned counsel appearing for the respondents has drawn my attention to a judgment of this Court in State of H.P. vs. Laxmi Nand and Others, 1992(2) Sim.L.C.307 to urge that the basis for the offences have not been established that is to say the demarcation report not being in accordance with law, makes the prosecution a futility and a serious 6 incursion of the liberty of the respondents. For this purpose they relied upon the demarcation report which according to learned counsel does not in any manner conform to the parameters of law as laid down by this Court. These are matters to be considered by the learned Special Judge while framing charges, if any. He will keep in mind the settled principles and will not consider the remand of the case as an approval of the submissions made by the State that prima facie charge is made out against the respondents. These observations have been made with a view that the learned Court below will follow the principles of law, as established, before proceeding further in the matter. With the aforesaid observations, these revision petitions are disposed of. The matter shall be considered afresh for framing of charge(s), if any, by the learned Special Judge, Sirmaur District at Nahan. There shall be no order as to costs. The parties shall appear before the Court on 20th August, 2008. The record be sent back mmediately. 9th July, 2008 (Dev Darshan Sud) (aks) Judge. 7 1.Cr.Revision No.99 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondents 1,6 : Mr.Bimal Gupta, Advocate. And 7. For Respondent No.2 : Mr.Anil Chauhan, Advocate. 2. Cr.Revision No.127 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondent No.2 : Mr.Anil Chauhan, Advocate. 3.Cr.Revision No.128 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondent No.1 : Mr.Bimal Gupta, Advocate. For Respondent No.3 : Ms.Anil Chauhan, Advocate. 4.Cr.Revision No.129 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondents 1 & 2: Mr.Bimal Gupta, Advocate. For Respondent No.4: Mr.Anil Chauhan, Advocate. 5.Cr.Revision No.130 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondent No.1 : Mr.Bimal Gupta, Advocate. For Respondent No.2 : Mr.Anil Chauhan, Advocate. 6.Cr.Revision No.131 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondents 1 & 5: Mr.Bimal Gupta, Advocate. For Respondent No.2 : Mr.Anil Chauhan, Advocate. 7.Cr.Revision No.163 of 2002. For the Petitioner : Mr.Vivek Thakur, Additional Advocate General. For Respondent No.2 : Mr.Anil Chauhan, Advocate. 8