When prima-facie evidence against the accused is available, then the case cannot be held meritless: Allahabad High Court

Court No. 30 Case : CRIMINAL APPEAL No. 12620 Appellant : Shivam Tiwari Respondent : State Of U.P. & Anr Counsel for Appellant : Kaushal Tiwari Counsel for Respondent : G.A Hon ble Suresh Kumar Gupta J As per report of CJM Ambedkarnagar dated 04.03.2021 notice was duly served on respondent no.2 but no one has put in appearance on his behalf. This criminal appeal has been filed by the appellant against the judgement and order dated 07.10.2020 passed by learned Special Judge SC ST Act Ambedkarnagar in SC ST Case No.1019 Crime No.01219 under Sections 323 504 506 IPC & Section 3(1)(d)(dha) of SC ST Act P.S. Malipur District Ambedkarnagar. The brief fact of the case is that according to the prosecution story the complainant namely Udayraj lodged the F.I.R. on 11.06.2019 with allegation that the son of the complainant Amarjeet who is handicapped was going to Malipur for repairing his bicycle. When he reached near Budhawa Baba temple then one Shivam Tiwari S o Jagdish Tiwari started casting abusive words and when the son of the complainant objected then the accused appellant inflicted injury to him. The F.I.R. was lodged against the accused appellant under Sections 323 504 506 IPC. During investigation the son of the complainant Amarjeet was examined medically on 13.06.2019 and following injury was found on the body of the injured 1. Contusion of size 3.0cm x 2.0cm present on partial region of skull 4.0cm above from Lt. ear. Colour Bluish Black. 2. Contusion of size 3.0cm x 1.2cm present on Lt. deltoid region. Colour Bluish black. 3. Abraded contusion of size 6.0cm x 2.8cm present on dorsal aspect of Rt. index finger. 4. Abrasion of size 1.5cm x 1.0cm present on dorsal of Rt middle finger 2.5cm below from back of Rt. middle finger Colour Reddish brown scab present. 5. Contusion of size 4.0cm x 1.5cm present on dorsal aspect of Rt. thigh 15.0cm above from Rt. knee joint. Colour Bluish 6. Abrasion of size 3.0cm x 2.0cm present on front of Rt. knee joint. Colour Reddish brown scab present Opinion All injuries are simple in nature caused by any hard and blunt object duration about 2 4 days old. Learned counsel for the appellant submits that the investigating officer without collecting the credible evidence wrongly submitted the charge sheet and learned trial court without applying judicial mind convicted the accused appellant Learned counsel further submits that earlier the appeal was filed by the appellant in which he got interim protection to move application for discharge under Section 227 Cr.P.C. before the trial court. But the learned trial court without hearing the accused appellant wrongly rejected the discharge application filed under Section 227 Cr.P.C. and summoned the accused The main contention of the learned counsel for the appellant is that the appellant is innocent and has falsely been implicated due to parti bandi. Learned counsel further submits that the complainant is a local leader of ruling party and he always doing the local politics and in the Lok Sabha election he made pressure upon the villagers to cast their votes in favour of ruling party candidates but the appellant opposed the activities of the complainant and denied to cast his and his family votes in favour of the ruling party. Learned counsel further submits that the complaint against the accused appellant is frivolous and no offence is made out against the appellant. Therefore the accused appellant may be granted bail. Learned AGA opposes the prayer for grant of bail to the accused appellant and submits that after collecting the credible evidence the investigating officer submitted the charge sheet. It is also transpired from the injury report six injuries were inflicted on the body of son of the complainant Amarjeet Therefore the bail application of the accused appellant is liable to be rejected. I have heard learned counsel for the parties and perused the record. It transpires that the investigating officer after collecting the sufficient evidence submitted the charge sheet against the appellant. On perusal of the entire record I am of the view that inference cannot be drawn that no offence is made out against the appellant. Prima facie sufficient material against the appellant is available on record and the allegation shall be tested when the prosecution witnesses are examined before the The Hon ble Supreme Court in the judgment passed in the matter of "P. Vijayan vs. State of Kerala and Ors. reported in 2010SCC 1398 " held that : 10. Before considering the merits of the claim of both the parties it is useful to refer Section 227 of the Code of Criminal Procedure 1973 which reads as under: 227. Discharge. If upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge considers that there is not sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing." 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 see whether the trial will end in conviction or acquittal. Further the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution but has to exercise his judicial mind to the facts of the case in order to determine whether 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 a weighing and balancing of evidence and probabilities which is really the function of the court after the trial starts. 11. At the stage of Section 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. 12) The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar vs. Ramesh Singh wherein this Court observed as follows: 4. ... 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 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" This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage yet it may be sufficient for the satisfaction of the trial Judge in order to frame a charge against the accused. In a recent decision in Soma Chakravarty vs. State AIR 2007 SC 2149 this Court has held that : The settled legal position is that 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 At the time of framing of the charges the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true.... 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 Whether in fact the accused committed the offence can only be decided in the trial.Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone without anything more cannot form the basis therefor or held to be sufficient for framing charge." Apart from the aforesaid cases in the case of Sajjan Kumar vs Central Bureau of Investigation JT 2010(10) SC 413 the Apex Court has formulated the following guidelines with regard to the question as to how a matter for framing a charge against the accused is to be dealt with: i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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 case. 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 the 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 Sections 227 and 228 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 discloses 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 see whether the trial will end in conviction or acquittal." The aforesaid decisions have almost settled the legal position that at the stage of charge the court is not required to consider pros and cons of the case and to hold an enquiry to find out truth. Marshaling and appreciation of evidence is not in the domain of the court at that point of time. What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge can be framed. The court has to consider broad probabilities of the case total effect of the evidence and the documents produced including basic infirmities if any. If on the basis of the material on record the court could form an opinion that the accused might have committed offence it can frame the charge but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless. In my opinion the learned Special Judge SC ST Act has taken into account all the relevant materials and passed the impugned order keeping in view the parameters laid down by the Apex Court in the aforesaid cases. Therefore the submission of the counsel for the appellant that no charge was made out has no Since prima facie evidence against the appellant is available it cannot be said that the impugned order dated 07.10.2020 is devoid of merit. The said order is legal and based on evidence available against the appellant. There is no irregularity illegality or perversity in the impugned order dated 07.10.2020 passed by learned Special Judge SC ST Act. In view of the above the appeal is accordingly rejected However if the accused appellant is surrendered before the court below his bail application shall be decided in accordance with law. A copy of this order be communicated to the trial court for necessary compliance. Order Date : 14.7.2021

Summary: An order which is issued against the appellant based on evidence which is physical and readily available, cannot be held as ‘devoid of merit’ since such an order is legal and based on evidence. There is no irregularity or pervasiveness in such an order and any application against such an order on the grounds of merit must be rejected. This was held by the Hon’ble Justice Suresh Kumar Gupta in the case of Shivam Tiwari Vs. State of U.P. and Anr. [CRIMINAL APPEAL No. – 1265 of 2020] on the 14th of July 2021 before the Hon’ble High Court at Allahabad. The brief facts of the case are, the complainant namely Udayraj lodged the F.I.R. on 11.06.2019 with allegation that the son of the complainant, Amarjeet who is handicapped was going to Malipur for repairing his bicycle. When he reached near Budhawa Baba temple, then one Shivam Tiwari, S/o Jagdish Tiwari started casting abusive words and when the son of the complainant objected, then the accused-appellant inflicted injury to him. The F.I.R. was lodged against the accused-appellant under Sections 323, 504, 506 IPC. During investigation, the son of the complainant, Amarjeet was examined medically on 13.06.2019 and injuries on his skull and limbs were found which were simple in nature caused by any hard and blunt object, duration about 2-4 days old. Based on this FIR, the learned special judge passed an order against the appellant on 07.10.2020 convicting him under sections 323, 504 and 506 IPC and section 3 (1) (d) (dha) of SC/ST Act. Aggrieved by this, the appellant filed the present appeal before the Hon’ble High Court. Learned counsel for the appellant submits that the investigating officer without collecting the credible evidence wrongly submitted the charge-sheet and learned trial court without applying judicial mind convicted the accused-appellant. He further submitted that, the appellant is innocent and has falsely been implicated due to parti-bandi. Learned counsel further submits that the complainant is a local leader of ruling party and he always doing the local politics and in the Lok Sabha election, he made pressure upon the villagers to cast their votes in favour of ruling party candidates, but the appellant opposed the activities of the complainant and denied to cast his and his family votes in favour of the ruling party. Furthermore, he complaint against the accused-appellant is frivolous and no offence is made out against the appellant. Therefore, the accused-appellant may be granted bail. However, the counsel for the respondents opposes the prayer for grant of bail to the accused-appellant and submits that after collecting the credible evidence, the investigating officer submitted the charge-sheet. It is also transpired from the injury report, six injuries were inflicted on the body of son of the complainant, Amarjeet. Therefore, the bail application of the accused-appellant is liable to be rejected. The learned judge heard the contentions of both the parties and analyzed the case asper the rules laid down in P. Vijayan vs. State of Kerala and Ors. reported in 2010 (2) SCC 1398, wherein it was held that, “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 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” The court also looked into the judgements in the case of Sajjan Kumar vs. Central Bureau of Investigation, JT 2010(10) SC 413 wherein it was held that, “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. If on the basis of the 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.”