Rakesh Jain vs State Of M.P.

Instant petition under Section 482 of Cr.P.C. has been filed assailing the order dt.19.02.2019 passed by the learned Special Judge

(M.P.D.V.P.K.Act, 1981) and Second Additional Sessions Judge, Gwalior, M.P. in S.T.No.03/2019, whereby the charges have been framed against

the petitioner under Section 412 of IPC and Section 11/13 of M.P.D.V.P.K.Act, 1981.

Prosecution story, in short, is that the complainant Satendra Singh was travelling alongwith his wife on 29. 04.2018. When the train departed, some

unknown person ran alongwith the train and snatched the handbag containing Rs.15,000/- in cash, golden earring, one mobile of MI company and one

ATM card. A crime was registered at Crime No.411/2018 under Section 392 of IPC by P.S. GRP Jhansi and the matter was referred for

investigation of GRP (BG), P.S. Gwalior. The case was re-registered at Crime No.156/2018 and after investigation, challan has been filed. Learned

JMFC committed the case and framed the charges against the petitioner under Section 412 of IPC and Section 11/13 of M.P.D.V.P.K.Act, 1981.

Learned counsel for the petitioner contends that the petitioner is a cloth merchant having a shop in Mor Bazar Gwalior. In his shop there are seven

servants working. For the purpose of enhancement of business, the petitioner had distributed the SIM card to two servants namely Kuldeep and

Mukesh and the mobile in question was being used by Kuldeep Singh alongwith the SIM provided by the applicant. The incident took place on

02.08.2018 and thereafter police came at the shop and arrested the petitioner without disclosing any fact. The petitioner came to know the fact that he

was arrested since he had purchased the stolen mobile from Suraj, to whom Kuldeep had brought to the shop. The petitioner did not have the

knowledge that mobile which he had purchased is stolen, as such, at the most, offence under Section 411 of IPC may be made out. It is further

submitted that ingredients of Section 412 of IPC are not made out against the petitioner, as the petitioner was not involved in commissioning of the

dacoity. He has only purchased the mobile for consideration of Rs.3,000/- from Suraj and he did not know it was a stolen mobile. The employee of the

petitioner is the neighbour of the accused Suraj, therefore, he had brought Suraj to the shop.

Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in the case of Narayan Prasad Vs. State of M.P. as

reported in 2005 (13) SCC 247 as well as judgment of this Court in the case of Achyut Das Vs. State of Assam as reported in 1994 (1) SCC 387 in

support of his contention.

Apex Court has held that the essential ingredients for the offence are that the accused should have the knowledge that the goods were stolen and in

absence of such knowledge, no presumption can be drawn that accused knew about the goods being stolen.

On the other hand, learned Public Prosecutor opposed the prayer and submitted that the question which falls for consideration is as to whether an

offence punishable under Section 412 of IPC is squarely made out or not. In the instant case, the petitioner would have to satisfy the court that he had

no knowledge or reasons to believe that the article stolen was in the course of dacoity and that he did not know the fact that the mobile which he was

purchasing is a stolen property. Prima facie, there is material on record against the petitioner. As such, the learned trial court had framed the charges.

The Supreme Court in the case of Ajay Kumar Parmar vs. State of Rajasthan reported in AIR 2013 SC 633 has held as under:-

“14. The Magistrate, in exercise of its power under Section 190 Cr.P.C., can refuse to take cognizance if the material on record warrants so. The Magistrate must, in

such a case, be satisfied that the complaint, case diary, statements of the witnesses recorded under Sections 161 and 164 Cr.P.C., if any, do not make out any offence.

At this stage, the Magistrate performs a judicial function. However, he cannot appreciate the evidence on record and reach a conclusion as to which evidence is

acceptable, or can be relied upon. Thus, at this stage appreciation of evidence is impermissible. The Magistrate is not competent to weigh the evidence and the

balance of probability in the case.â€​ (Emphasis supplied)

The Supreme Court in the case of Soma Chakravarty vs. State (Th. CBI) reported in 2007 AIR SCW 3683 has held as under:-

“20. It may be mentioned that the settled legal position, as mentioned in the above decisions, 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 tobe accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material

placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be

decided in the trial.â€​ (Emphasis supplied)

The Supreme Court in the case of State of Bihar vs. Ramesh Singh reported in AIR 1977 SC 2018 has held as under:-

“... ...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…. â€​

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.â€​

The Supreme Court in the case of Amit Kapoor vs. Ramesh Chander & Anr. reported in (2012) 9 SCC 460 has held as under:-

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of

the Code. Under both these provisions, the court is required to consider the “record of the case†and documents submitted therewith and, after hearing the

parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence,

it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the

accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of

constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case.

There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court

while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing

an offence, is an approach which is impermissible in terms of Section 228 of the Code.

x x x x x x x

At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if

put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or

not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh (1977) 4

SCC 39: (SCC pp. 41-42, para 4)

“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 considers that there is no 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 whichâ€" …

(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

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 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.â€​

It is well established principle of law that at the time of framing of charge, meticulous appreciation of evidence is not required and even a strong

suspicion is sufficient to frame the charges.

Under these circumstances, this Court is of the considered opinion that there is sufficient material on record to prima facie show commission of

offence by the petitioner as it has come on record. No illegality could be pointed out by the counsel for the petitioner in the order framing charge.

Accordingly, this case fails and is hereby dismissed.

Needless to state that the trial court shall decide the trial strictly in accordance with law and the evidence which would come on record without

being influenced by the observation made by this Court in this case.