Ajit Singh vs State of Punjab

V.S. Aggarwal, J.

By this common judgment, I shall dispose of Criminal Revision Nos. 265 of 1995, 266 of 1995 and 267 of 1995 filed by Ajit Singh against the State of Punjab as all the revision petitions are based on identical facts.

On 30.7.1991 petitioner Ajit Singh Dhillon presented a power of attorney allegedly executed by Amar Aulakh dated 7.10.1990 in the court of Deputy Collector, Canal Department, Abohar. A copy of the same had been given to Iqbal Singh Aulakh complainant. On examination of the same, he found that signatures of the witnesses appeared to be forged. He got it compared and made a report to the Senior Superintendent of Police, Ferozepur. On the basis of that report, an FIR was recorded with respect to the offences punishable under Sections 420/465/467/468 and 471 IPC. The challan was presented before the learned Judicial Magistrate. Arguments were addressed as to if charge has to be framed or not. The learned Judicial Magistrate held that under Section 85 of the Indian Evidence Act, it is to be presumed that the power of attorney executed before and authenticated by the Notary Public was so executed and authenticated. Reference was made to the letter written by Inderjit Singh Aulakh who resides in United States of America against the complainant. He had allegedly written that complainant is a violent man and is harassing him and that he had executed the power of attorney in favour of the petitioner. The learned trial court further held that the two witnesses who are alleged to have signed the power of attorney have not been examined. Accordingly, the petitioner was discharged with respect to the above said offences.

The State filed a revision petition. It was heard by the learned Sessions Judge, Ferozepur. The learned Sessions Judge held that at the time of framing of charge, detailed scrutiny was not required. The Magistrate was not justified in discharging the accused. Accordingly, the revision petition was accepted. The learned Judicial Magistrate was directed to proceed with the case in accordance with law.

Aggrieved by the same, the present revision petition has been filed.

Sections 239 and 240 of the Code of Criminal Procedure deal with the situations when the accused has to be discharged or the charge is to be framed. If the charge is found to be groundless, then the Magistrate on consideration of the police report and the documents and making such examination as deemed appropriate, may discharge the accused but if there is ground to presume that accused has committed an offence, the charge can well be framed. This question has been considered more than once by the Supreme Court. Reference to some of those precedents can well be made. In the case of Union of India v. Prafulla Kumar Samal and another, AIR 1979 SC 366, the Supreme Court was concerned with the provisions of Section 227 of the Code of Criminal Procedure. Of course it was concerned with a case which is triable by the court of Session but since the provisions though not absolutely identically worded as Sections 239 and 240 Cr.P.C. but still, the basic concept is the same. It has to be seen if prima facie case is made out or not. The Supreme Court held that broad probability of the case can be considered. In paragraph 10 the following guidelines were provided :

"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 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 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 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 Court cannot act merely as a PostOffice 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. 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."

Similar question was again considered by the Supreme Court in the decision Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and other, AIR 1980 SC 52. No different was the view expressed and it was held that even if there was a strong suspicion, charge can well be framed. In paragraph 18 the Supreme Court held:

"It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be matriculously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to 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 that offence."

Subsequently, in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, 1991(1) RCR 89 , the Supreme Court was again considering the provisions of Sections 227 and 228 of the Code of Criminal Procedure. The findings in paragraph 7 arrived at were:

"From the above discussion, it seems well settled that at the Sections 227/228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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."

It is obvious from the aforesaid pronouncements that for limited purpose the Court can sift the evidence. Detailed scrutiny is not to be made. It need not be accepted as a gospel truth as to what is stated by the prosecution.

In the petitions that are under consideration there is no dispute that there is no complaint made by the executant of the power of attorney. The witnesses to the said power of attorney though not residing in India, have not been interrogated. Those witnesses were the best evidence. No attempt had been made to interrogate them. Simply reliance is being placed on the opinion of the handwriting expert. But it is well known that on mere opinion conviction cannot be recorded. When there is no other material evidence, then the learned Judicial Magistrate was justified in discharging the petitioner. The sifting of the evidence made by the learned Judicial Magistrate was not excessive or improper. It was permitted under the circumstances and facts of the case. In these circumstances, the order passed by the learned Sessions Judge cannot be justified.

For these reasons, the revision petitions are accepted. The order of the learned Sessions Judge is set aside, restoring that of the learned Judicial Magistrate. The petitioner is discharged.