Naved Hashmi @ Johni Kazi vs State Of Madhya Pradesh

Petitioner-accused has filed this criminal revision under Section 397 read with 401 of Cr.P.C. to set-aside the impugned order dated 23/06/2016

passed by Additional Session Judge Beena, District-Sagar in S.T. No. 203/2016 whereby learned Additional Session Judge, Beena, District Sagar

framed charges for the offence punishable under Section 306 in alternative 306 read with 34 of IPC.

The facts of the prosecution case are that on 04/12/2015 deceased Ravi Kumar Sahu has committed suicide by hanging himself over a tree in the

garden. Complainant Prem Narayan Sahu informed this incident to the Police Station. Marg No. 83/2015 was registered under Section 174 of Code of

Criminal Procedure and investigation was conducted by the Police. During the investigation a suicide note was recovered from the pocket of the

deceased wherein it is stated that the petitioner accused and others are responsible for his death. It is alleged that the deceased was falsely implicated

by the petitioner-accused and other persons. Petitioner-accused and other persons alleged that deceased has committed theft of Soyabeen and he was

beaten by those persons and they threatened to lodge report against him. Petitioner-accused mentally and physically tortured the deceased. They

pressurized the deceased to drive the vehicle of the petitioner-accused. Deceased refused but the petitioner-accused and others pressurized to the

deceased again and again. Deceased was employed in a school bus but petitioner-accused told the school that deceased is a thief so petitioner-

accused and other co-accused persons pressurized the deceased so deceased committed suicide. During the investigation statements of witnesses

have been recorded and after investigation, charge-sheet has been filed against the petitioner-accused. Learned trial judge framed aforesaid charges

against the petitioner-accused.

Learned counsel for the petitioner accused submits that learned trial judge without appreciating the facts and circumstances in proper perspective

and misinterpreting provision of law has framed the charges against the petitioner-accused,So the order is bad illegal and improper. There is no

material of cogent and plausible evidence to indicate complicity of the petitioner-accused in the alleged offence. Merely on assumption and

presumption he has been falsely implicated in this case. There is no evidence to show that petitioner-accused abetted the deceased to commit suicide.

So there is no material on record to establish that deceased has committed suicide having been abetted or instigated by the petitioner-accused. The

allegation made against the petitioner-accused are vague, general and frivolous and arenot legally sustainable for framing charge under Section 306 of

IPC. At the time of framing of charge, it is the bounden duty of a court to ascribe whether necessary ingredients to constitute the alleged offence are

satisfied or not. In view of the totality of the circumstances, the reasoning ascribed by the learned trial judge framing charge against the petitioner-

accused under Section 306 of IPC deserves to be set-aside.

Learned counsel for the respondent-State submits that there is sufficient material available on record. Deceased was tortured and humiliated by the

petitioner-accused continuously so deceased has no alternate but to commit suicide, so petition be dismissed.

Heard both the parties and perused the record.

It is evident from the record that learned trial judge framed the charges against the petitioner-accused under Section 306 in alternative 306 ready

with 34 of IPC, so it must be seen that what is the material against the petitioner-accused. Section 227 of Code Of Criminal Procedure, 1973 reads as

under:

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.

Section 228 of Code Of Criminal Procedure, 1973 reads as under:

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.

Hon’ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others AIR 1990 SC 1962

has held as under:-

Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors., [1979] 4 SCC 27 4this Court observed in

paragraph 18 of the Judgment as under: ""The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or

other-wise, 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 rounded 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"".

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.â€​

Hon’ble Supreme Court again in the case of Union of India Vs. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as under:-

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 the 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 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 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 Judge cannot

act merely as a Post office or a mouth-piece 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.

Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another 2005(2) SCC 561 has held as under:-

“It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the

Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for

presuming that the offence has been committed and not a ground for convicing the accused has been made out. At that state, even strong suspicion

founded on material which leads that court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged

would justify the framing of charge against the accused in respect of the commission of that offence.â€​

Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-

“As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no

right to produce any material, Satish Mehra case, holding that the trial court has power to consider even materials which the accused may produce at

the stage of Section 227 of the Code has not been correctly decided.â€​

The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has held 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 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, the 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. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla

Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:

“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 shift the evidence as it cannot be expected even at the 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.

(emphasis supplied)

The Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 3 h6as held

as under:-

“10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at

the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.

The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned

counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the

court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned

order of the High Court cannot be sustained and is set aside. The appeal is allowed.â€​

So it is evident from the above case laws that if there is strong suspicion which is found upon the available material, then charge can be framed. It

is evident from the suicide note that deceased alleged that petitioner-accused and others are responsible for his suicide. So petitioner-accused is

named in the suicide note. It is also evident from the record that deceased was driving the vehicle of petitioner-accused. Petitioner-accused and others

made allegations against the deceased that deceased is a thief and he stole his Soyabean thereafter, deceased was tortured and humiliated by the

petitioner-accused and others. So deceased left to drive vehicle of the petitioner-accused. Petitioner-accused pressurized the deceased to drive the

vehicle of the deceased but deceased refused to accept the proposal of petitioner-accused. Petitioner-accused has taken the deceased from his house.

Petitioner-accused threatened the deceased that he drive the vehicle of petitioner-accused otherwise he will beat him. Petitioner-accused accept Rs.

30,000/- from the deceased and again and again deceased was beaten, tortured and humiliated by the petitioner-accused. Three and four days before

this incident, deceased was beaten. Deceased was employed in a school bus, petitioner-accused and others reached the School and told that deceased

is a thief, so in these circumstance, he committed suicide. So prima-facie material is available that deceased was tortured and humiliated continuously

by the petitioner-accused and others, So in these circumstances there is strong suspicion to the alleged offence. At the time of framing charge, there is

no necessity of formulating the opinion about the prospect of conviction. So in these circumstances there is no perversity or illegality in the impugned

order, so interference is not warranted.

Learned counsel for the petitioner-accused relied upon the judgment of Hon’ble Apex Court in the case of M. Mohan Vs. State represented

by Dy. Superintendent of Police reported in 2011 (3) SCC 626 and S.S. Chhena Vs. Vijay Mahajan and another 1995 MPLJ 458 which are

distinguishable on facts and is of no help to the petitioner.

In view of the above discussion, this court is of the view that the trial Judge has assessed that there is prima facie case against the present

petitioner-accused, then he framed the charges. So there is no perversity or illegality in the impugned order.

Accordingly, this petition is dismissed.