Rahul Agrawal vs The State of Madhya Pradesh

C.V. Sirpurkar, J.—This criminal revision filed on behalf of the accused/applicant Rahul Agrawal is directed against order dated 28.05.2014 passed by the Court of Chief Judicial Magistrate, Katni, in Criminal Case No. 6478/2006, whereby the accused was discharged of offences under Sections 295 and 427 of the IPC but a charge of offences punishable under Sections 294 and 298 of the IPC was framed against him.

The facts necessary for disposal of this criminal revision are as follows: On 07.12.2006 at 11.00 p.m., first informant Anoop Singhai lodged an FIR in P.S.-Kotwali, Katni to the effect that the first informant is a follower of Jain Religion. He regularly visits Parshwanath Digamber Jain Mandir (Glass Temple), for offering prayers. Accused/applicant Rahul Agrawal is tenant of Parswanath Digamber Jain Mandir and runs a shop in the tenanted premises, in the name and style of M/s. Punjab Stores. Digamber Jain Mandir is situated on the first floor above the tenanted shop. The applicant has been causing damage to the roof and wall of the tenanted shop. In this regard a case has been instituted in the Court and applicant Rahul Agrawal has been injuncted by the Court from causing damage to the shop.

It was further alleged in the first information report that at around 07.30 pm on 07.12.2006, first informant Anoop Singhai had gone to Parswanath Digamber Jain Mandir to offer prayers. At that time, he suddenly heard noise of hammer blows emanating from the shop of the applicant. Due to vibration caused by the blows, the idol of Lord Parswanath, which was duly installed after following religious precepts, was displaced. They went down and saw that accused applicant Rahul Agrawal was getting wall of his shop, which was right below the idol, demolished by his labourers. They asked the applicant to stop demolishing the wall but applicant Rahul Agrawal abused Jainees and asked them to run away. He further stated that he would not stop the demolition regardless of whether the temple is destroyed or falls down. He charged the first informant and his companions with hammer in his hand. The first informant and his companions ran away from the spot to save their life.

The order framing charge as aforesaid, has been assailed on behalf of the applicant/accused mainly on the grounds that Parswanath Digamber Jain Mandir, through Secretary Santosh Kumar Jain has filed a civil suit for eviction of the applicant from the tenanted shop. That civil suit was still pending on the date of incident. It has further been submitted that the furniture installed in the shop had become old and was infected by termite; therefore, on 23.11.2006, applicant was removing the old furniture from the shop. He was not causing any damage to the shop and was not raising any new construction. However, on 24.11.2006, the plaintiff Parshwanath Digamber Jain Mandir moved an application under Section 151 of the CPC in the pending civil suit expressing apprehension that the applicant was sub-letting the shop. The applicant clarified that he did not intend to sublet the shop but was only removing furniture. Subsequently, on 24.11.2006 at around 10.30 pm, he received a phone call from a Police Officer, who used abusive and filthy language calling the applicant immediately to the police station. The applicant went to the police station on 25.11.2006 at around 11.00 a.m. The police officer enquired from the applicant regarding his activities in the temple premises. The applicant explained his position to the Police Officer. Subsequently, A direction was made by the Civil Court for local inspection of the tenanted shop in accordance with the provisions of Order 26 rule 9 of the CPC; however, the Commissioners submitted a report that the spot inspection could not be conducted because the Commissioners had received threats from local M.L.A., who belonged to Jain Community and other members of the community. Thereafter, 10 frivolous complaints were filed against the applicant in the police station.

It has also been submitted on behalf of the applicant that in aforesaid circumstances, the applicant filed a Writ Petition No. 18136/2006 in the High Court on 05.12.2006 making specific allegations regarding aforesaid facts. The writ petition is still pending. In the writ petition, it was alleged that respondent Nos. 5 to 9 which also include the first informant Anoop Jain @ Anoop Singhai,, had been harassing the applicant since the year, 1995. It was further averred that the members of Jain Community along with local MLA, were threatening to put the applicant behind the bar. Therefore, it was prayed that the respondents be restrained from interfering with the petitioner''s right to life and liberty.

In the backdrop of aforesaid facts, learned senior counsel for the applicant vehemently argued that the criminal proceedings instituted on the first information report lodged by Anoop Singhai, are manifestly attended with mala fide and has been instituted with ulterior motives of getting the shop vacated and for wrecking vengeance on the accused with a view to spite him; therefore, in view of the law laid down in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, , the charge framed against the applicant is liable to be quashed.

Learned Government Advocate for the respondent/State on the other hand has supported the order framing charge contending that the ingredients constituting offences under Sections 294 and 298 of the IPC are made out from the charge sheet and the documents filed therewith. Learned Government Advocate, placing reliance upon the judgment in the case of State of Orissa v. Debendra Nath Padhi, (2001) 1 SCC 568 contended that the accused has no right to have the documents filed by him considered at the stage of framing of charge.

Learned senior counsel for the applicant has tried to counter the aforesaid argument by inviting attention of the Court to the case of Harshendra Kumar D. Vs. Rebatilata Koley Etc., wherein the Supreme Court has observed that:

"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.

Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant''s resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company."

Having perused the copy of charge sheet and the documents filed therewith by the applicant in this criminal revision and having considered the rival contentions, this Court is of the view that this criminal revision must fails for the reasons hereinafter stated.

First of all, the Court has to consider whether the documents filed by the accused may be considered for the purpose of framing of charge?

Placing reliance upon the judgment of Harshendra Kumar D. (Supra), learned senior counsel for the applicant has argued that the documents in the nature of public documents or material which are beyond suspicion or doubt or uncontroverted documents of unimpeachable or sterling character, may be consider at the stage of framing of charge.

This Court does not agree with the arguments advanced on behalf of the applicant in this regard in view of the principles enunciated by the Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi, , wherein overruling the law laid down in the case of Satish Mehra Vs. Delhi Administration and Another, , a three judge bench of the Supreme Court has categorically held that for the purpose of Section 227 of Cr.P.C., only documents produced under Section 173 of the Code are relevant. The defence of the accused would not be relevant at that stage and material produced by the prosecution alone is to be considered. It was further held that depriving the accused to produce the material of sterling quality at the stage of framing of charge, was not violative of Article 21 and 14 of the Constitution; since, allowing a roving or fishing enquiry and conducting a mini-trial at the stage of framing of charge, was not permissible.

In the case of Harshendra Kumar D. (Supra), the Supreme Court was considering the right of the accused to have uncontroverted documents of unimpeachable character and sterling quality considered at the stage of registration of private complaint and issuance of process under Section 204 of the Cr.P.C., in the proceedings before the High Court under Sections 482 or 397 of the Cr.P.C. However, in view of dictate of Supreme Court in the case of Debendra Nath Padhi (Supra), aforesaid principle would not apply to a criminal revision filed against framing of charge. At the stage of framing of charge, trial Court can only consider the documents filed by the prosecution along with the charge sheet. Thus, learned trial Court committed no error in considering the documents filed by the applicant at the stage of framing of charge and by not considering his defence.

In the alternative, learned senior counsel for the applicant has argued that nomenclature of the proceedings is not material and even in proceedings under Section 397 of the Cr.P.C., extra-ordinary powers of the High Court reserved by Section 482 , may be exercised by the High Court; therefore, while deciding this criminal revision, the High Court may take into consideration uncontroverted documents or documents of unimpeachable character and sterling quality filed by the accused.

The answer to aforesaid argument is to be found in paragraph No. 21 of the judgment of Supreme Court in the case of Debendra Nath Padhi (Supra), which reads as follows:

"21. It is evident from the above that this Court was considering the rare and exceptional cases where the High Court may consider unimpeachable evidence while exercising jurisdiction for quashing under Section 482 of the Code. In the present case, however, the question involved is not about the exercise of jurisdiction under Section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge."

It is clear from aforesaid observations that provision under Section 482 and 397 of the Cr.P.C. are separate and distinct and the scope and ambit of those powers is also different.

In any case, it is clear from the documents filed by the applicant with this criminal revision that the applicant had filed a miscellaneous criminal case being M.Cr.C. No. 10021/2013, under Section 482 of the Cr.P.C., which was dismissed as withdrawn by a co-ordinate bench of this Court by order dated 20.11.2013 as withdrawn, with liberty to file a fresh petition after being properly drafted. Another miscellaneous criminal case under Section 482 of the Cr.P.C. being M.Cr.C. No. 15957/2013 was filed challenging the order dated 21.11.2011 passed by the learned trial Court dismissing the application of the accused for discharge. This Miscellaneous Criminal Case was also dismissed on 28.1.2014 observing that such application for discharge does not lie and all questions pertaining to charge must be considered at the stage of the charge. The trial Court was directed to frame charge without being influenced by the observations made by the High Court. In aforesaid circumstances, the impugned order, framing charge came to be passed. Thus, the applicant has already exercised his option of challenging the first information report and the proceeding arises therefrom under Section 482 of the Cr.P.C. in these circumstances, applicant cannot be allowed to invoke the powers of the Court under Section 482 of the Cr.P.C., again.

Even if we assume for the sake of arguments that the documents filed by the accused may be considered at the stage of charge, it cannot be said that the documents filed by the accused are either uncontroverted or of unimpeachable character or of sterling quality. The document relied upon by the applicant is a copy of W.P. No. 18136/2006 filed by him on 05.12.2006. In this writ petition, averments to the effect were made that there is a civil dispute regarding the tenanted shop. An altercation in respect of damage to the wall and roof of the tenanted shop took place on 23.11.2006; whereafter, the local MLA, members of the Jain community and the local Police Officers were harassing the applicant with a view to get the shop vacated. A writ in the nature of prohibition was prayed for restraining the respondents in interfering with the petitioner''s right to life and liberty. Such vague allegations made in the writ petition cannot be allowed to act as a blanket insurance against all future transgressions of law by the applicant; otherwise, anybody would first file a writ expressing apprehension of false implication in a criminal case and would subsequently commit the crime.

It is not as if the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e. the material is not sufficient to reject and overrule the factual assertions contained in the complaint. It is also not such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (Please see Rajiv Thapar and Others Vs. Madan Lal Kapoor,

As such, all that Court the had to consider at the stage of framing of charge was whether ingredients constituting offence punishable under Sections 294 and 298 of the IPC were made out from the charge sheet and the documents filed therewith. It is clear from the first information report and the statement of witnesses namely Rajendra Kumar Jain, Surendra Kumar Jain and Manoj Kumar Jain that the applicant/accused had uttered the following words at or near a public place in the presence of and addressed to members of the Jain community.

On the basis of language used and the circumstances in which it was used, it may be presumed for the purpose of charge that those hearing utterances must have been annoyed. It may also be presumed in the circumstances that the later part of the statement was made with deliberate intention to wound religious feelings to a particular community in the presence of members of that community; as such, the ingredients constituting offences punishable under Sections 294 and 298 of the IPC exist for the purpose of framing charge.

That being so, in the opinion of this Court, the impugned order framing charge under Sections 294 and 298 of the IPC, does not suffer from any illegality, irregularity or impropriety. Thus, no interference in revisional jurisdiction of the High Court is called for.

Consequently, this criminal revision deserves to be and is accordingly dismissed.

C.C. as per rules.