Shambhu Prasad & Another vs State Of Uttarakhand & Others

Alok Singh, J

1) By means of present application under Section 482 Cr.P.C., the applicants seek to quash the charge framing order dated 19.09.2013 as well as chargesheet dated 24.08.2006 and the proceedings of Criminal Case No.1722 of 2009, State vs. Madho Singh, under Sections 420, 467, 468, 471 IPC pending in the court of Additional Chief Judicial Magistrate, Kotdwar, District Pauri Garhwal.

2) Brief facts of the case are that an FIR was lodged on 19.04.2006 against Mathow Singh and unknown officers/employees of the Tehsil, Kotdwar for the offences punishable under Sections 420, 468, 471 IPC. After lodging of the FIR, the matter was investigated by the Investigating Officer and, on completion of investigation, the Investigating Officer submitted a chargesheet against the applicants and Madhaw Singh. Thereafter, the Magistrate summoned them and criminal proceedings were initiated against them under Sections 420, 467, 468 & 471 IPC.

3) Feeling aggrieved, applicants and Madhaw Singh preferred three separate applications under Section 482 bearing Nos.1010 of 2006, 982 of 2006 and 1011 of 2016 before this Court. Vide order dated 12.08.2010, the coordinate bench of this Court dismissed the same by holding that a case is made out prima facie on perusal of the contents of the complaint and after going through the documents.

4) Thereafter, the accused filed an application for discharge under Section 239 Cr.P.C., which was dismissed by the court below, vide order dated 05.05.2012. Aggrieved against the same, applicants preferred a criminal revision, which was also dismissed by learned Additional Sessions Judge, vide order dated 07.05.2013 by an elaborate order. The Court need not repeat the grounds on the basis of which the application under Section 239 Cr.P.C. and revision thereof were dismissed.

5) Still feeling aggrieved against the same, present application under Section 482 Cr.P.C. has been filed by the accused-applicants expecting that this Court will exercise its inherent jurisdiction to come to their rescue.

6) Perusal of the documents brought on record reveals that one Virendra Pal (respondent no.3 herein) lodged an FIR alleging therein that a land in question was in the name of his father Ram Singh Bisht and aunt (Chachi) Smt. Khemwati Devi; on 30.01.2016, he came to know that Madhow Singh prepared a forged will of his father and aunt and got mutated the said land in his name in conspiracy with the officers/employees of the Tehsil during the life time of his father and aunt. It has come during the course of investigation that Shambhu Prasad and Harish Chandra Sharma have written the alleged will and they were also the witnesses of the same.

7) Learned counsel for the applicants vehemently submitted, among other things, that there is nothing material on record to show that the ingredients of Sections 420, 467, 468, 471 IPC are fulfilled, on a perusal of the material brought on record.

8) The scope of discharge has been highlighted by the Hon'ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs State of U.P. & another, AIR 2013 SC 52.

9) First of all, the Court has to see what is the scope of interference in framing of charge? The Hon'ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows:

"8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) vs State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated 2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re-married on 30th October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to protect the appellants against harassment and the ignominy of a criminal trial.

On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.

The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under: "239. When accused shall be discharged.

If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a "11. 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 complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words: whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the 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 ."

Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:

"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. "

10) In the case of State of M.P. vs. Mohanlal Soni 2000 Crl.L.J. 3504, Hon'ble Supreme Court held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:

"8. The crystallized judicial view is that at the stage of framing 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 evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

11) In State of Orissa vs. Debendra Nath Pandhi (2005) 1 SCC 568, Hon'ble Supreme Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative in the following words:

"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced. ........................... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.........

As a result of 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..."

emphasis supplied

12) In the case of Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, the Hon'ble Supreme Court observed:

".......While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law."

13) In the case of Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, the Hon'ble Supreme Court has held as under:

"10. 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."

14) In the case in hand, applicants' role came into light during the course of investigation on the grounds, inter alia, that Shambhu Prasad and Harish Chandra Sharma had written the alleged will and they were also the witnesses of the same. Perusal of the documents brought on record reveals that the Naib Tehsildar, Kotdwar has submitted in para 10 of its inquiry report dated 10.04.2006 that the original will had been taken back by Shambhu Prasad. It transpires that as to who is in possession of the alleged will. Be that as it may. At this present juncture, this Court has to see as to whether there is any scope of interference in framing of charge. This Court is of the considered view that at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of learned counsel for the applicants is accepted, there would be a mini-trial at the stage of framing of charge.

15) Judging by the yardstick made by Hon'ble Supreme Court in the above-cited decisions, the Court does not find any merit in the grounds which have been taken on behalf of the applicants in present application under Section 482 Cr.P.C. The Court need not reproduce those grounds which have been taken by the applicants, as the same are part of the record.

16) Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

17) There appears to be no illegality in the order under challenge. No interference is called for in the same at this stage, as would also be evident from the law laid down by Hon'ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330, wherein it was held that the High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice.

18) This Court is of the view that at present, this is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same.

19) The Court was taken through the contents of complaint/FIR. From a bare perusal of it as well as the documents on record, it is apparent that foundation of criminal offence is laid against the present applicants in the instant case. Criminal proceedings pending against them, therefore, should not be quashed. They should not be discharged either. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution.

20) It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself.

21) The application under Section 482 Cr.P.C. is dismissed. Liberty is, however, granted to the applicants to place all the factual pleas before the trial court for securing their acquittal, at an appropriate stage.

22) Let a copy of this order be communicated to the court below immediately.