1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL REVISION PETITION NO. 885/2009 Dharmendra Choudhary vs. State of Rajasthan Date of Order: 07/08/2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. G.S. Sodhi, for the petitioner. Mr. Javed Choudhary, Public Prosecutor. This revision petition has been filed by the accused petitioner challenging the order dated 21.04.2009, whereby charges have been framed against him under Section 148, 341/149, 323/149, 325/149, 307 and 307/149 IPC and under the Arms Act. 2. The learned counsel for the petitioner has submitted that in this very matter, a cross case has been registered by the accused party and some persons on their side had also sustained injuries. Therefore, he has submitted that it is a case of free fight and for that reason, the charge framed against the petitioner for the offence, inter alia under Section 307 IPC, is erroneous. In support of his submission, he placed reliance on the case of Himmat Singh & Ors. vs. State of Rajasthan, 2006 (1) R.Cr.D. (Raj.) 200. 3. On the other hand, the learned Public Prosecutor has supported the order of charge passed by the learned trial court, for the aforesaid offences. Further, he has submitted that at the stage of framing charge, the learned court is only to consider the 2. matter on a general consideration of the material placed before it by the investigating police officer. Even a strong suspicion founded upon materials before the trial court which leads him to form a presumptive opinion as the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of offence. 4. Having considered the submissions made by the counsels for the rival parties and on careful perusal of the documents placed on record, I am of the considered opinion that the learned trial court has not committed any illegality or infirmity in passing the order impugned, whereby charges have been framed against the petitioner. Needless to say that at the stage of framing of charge, the learned trial court is not under obligation to consider the matter in detail or to give reasons for it. But even then the learned trial court, in the order impugned, has given the relevant circumstances on the basis of which he had decided to frame charges against the petitioner. 5. So far as the submission made by the counsel for the petitioner that in view of the cross case and the injuries sustained by the members of the accused party, it is a case of free fight and therefore the charge under Section 307 IPC could not be have been framed against the petitioner, I am afraid that the same cannot be accepted in view of the relevant provisions and the principles of law laid down by the Hon'ble Supreme 3. Court. It is a well settled principle that at the stage of framing of charge only the material placed on record by the police which is to be considered and it is not domain of the learned trial court to consider as to whether it is a case of free fight, self defence, etc. in exercise of powers under Section 228 Cr.P.C. 6. Chapter XVIII of the Code of Criminal Procedure provides for trial before Court of Sessions. Under Section 228 of the Code of Criminal Procedure charges are framed in Sessions trial. Section 228 reads as under:- “228. Framing of charge.-:(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” In other words, the learned Judge is of the opinion that there is ground for presuming that the accused has committed an offence, which is exclusively triable by it, he shall frame a charge in writing against the accused. Thereafter, the charge shall be read and explained to the accused and he shall be asked as to whether he pleads guilty of the offence charged or claims to be tried. 4. 7. The Hon'ble Supreme Court has laid down the considerations to be applied by the Court at the time of framing of the charge. As early as in the year 1977, in the case of State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39, the Hon'ble Supreme Court has laid down the tests and considerations to be applied by Court while appreciating Section 228 of the Code of Criminal Procedure. The Hon'ble Supreme Court, in para 4 and 5 of the said case, has held as under:- “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. 'The Judge has to pass thereafter an order either under Section 227 or section 228 of the Code. If "the Judge consider that there is not. sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- .........(b )is exclusively triable by the Court, he shall frame in writing a charge against the accused', as provided in Section 228. 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 trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the 5. 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 227 or section 228 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 260 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 227 or section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and not under section 227.” “5. In Nirmaljit Singh Hoon v. The State of West Bengal and an- other(1)-Shelat, J. 6. delivering the judgment on behalf of the majority for the Court referred at page 79 of the report to the earlier decisions of this Court in Chandra Deo Singh v. Prakash Chandra Bose(2) where this Court was held to have laid down with reference to the similar provisions contained in sections 202 and 203 of the Code of Criminal Procedure, 1898 "that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process could not be refused." 8. In the case of Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chorida & Anr., (1989) 1 SCC 715, the Hon'ble Supreme Court, in a case where newly married girl died, had laid down in para 14 and 20 as under:- “14. These two decisions do not lay down different principles. Prafulla Kumar case has only reiterated what has been stated in Ramesh Singh case. In fact, sec. 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, he guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidenciary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.” 7. “20 We wish to add a word regarding interference by the High court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice stares the Court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.” 9. In a later case of State of M.P. vs. S.B. Johari & Ors., (2000) 2 SCC 57, The Hon'ble Supreme Court, in para 4, laid down as under:- “...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed 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 cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such 8. case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.” 10. Therefore, no illegality or infirmity has been committed by the learned trial court in framing of charge against the accused petitioner and in passing the order impugned dated 21.04.2009. 11. Consequently, this revision petition stands dismissed as being devoid of merits. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. Item no.s-2