Shamser Singh vs State

The petitioneraccused has filed this revision petition against the order dated 15.01.2008, passed by the learned Additional Session Judge,

Jammu in file No. 39/challan of 2007, whereby charges under section 302 RPC and 30 Arms Act have been framed against the petitioner or in the

alternative treating the petition under section 561A Cr.P.C. for quashing the proceedings against the petitioneraccused in the above mentioned case

under section 302 RPC and 30 Arms Act.

The prosecution case is that Police Station, Gangyal received an information through reliable source on 04.06.2007 that two parties are having

inimical relations between each other regarding a plot of land and on that day at 9 A.M at Purmandal Morh on the National Highway, the

complainant party armed with Tokas stopped the Alto Car of the accused and attacked upon him with Tokas'. The accusedpetitioner Shamsher

Singh fired two shots from his revolver which hit Vijay Kumar who died on spot. The Shamsher Singh ran away in car No. JK02A2300 and the

dead body was lying on spot. On this information, FIR No.38/2007 under Sections 302 RPC, 3/25 Arms Act was registered with Police Station,

Gangyal and investigation started. After completion of the investigation, a chargesheet under Sections 302 RPC 3/25 Arms Act was presented

before learned Chief Judicial Magistrate, Jammu on 25th July 2007, who committed the case to the court of Sessions Judge and the case was

transferred to Additional Sessions Judge, Jammu.

After going through the evidence and other material collected by the investigating agency during investigation, the learned Additional Sessions

Judge, Jammu found that a prima facie case for commission of offences under Sections 302 RPC, 30 Indian Arms Act was made out against the

accusedpetitioner and thereby framed charges for these offences against the petitioneraccused on 15.01.2008.

The petitioner being aggrieved by this order, has challenged the impugned order of learned Additional Sessions Judge Jammu on the ground that

no offence is made out under Sections 302 RPC.

I have heard the learned counsel for the parties and have considered the record on the file.

Mr.Sunil Sethi, learned counsel for the petitioner, has contended that the prosecution story as depicted in the challan (chargesheet) shows that

the complainant party attacked upon the accusedpetitioner and the petitioneraccused in his defence fired shot from the revolver which hit the

deceased and died on spot. The petitioneraccused had apprehended danger to his life because of the attack by the deceased, as such the

petitioner validly exercised his right of private defence of body. Thus no offence is made out under Section 302 RPC. He has further submitted in

alternate that in case any offence is made out that is under Section 304 RPC.

Mr. P.C. Sharma, Additional Advocate General, on the other hand, has submitted that no revision lies against the order of framing charges

under Section 435 (4) and the whole matter is based on facts which can be considered after completion of the evidence in the case. He has further

submitted that the charge can be amended or altered at any stage by the trial court in case evidence recorded in Court suggests so.

•r 8. The first plea raised by the learned Additional Advocate General is that no revision lies against the framing of the charge. SubSection 4(a)

of the Section 435 of Code of Criminal procedure bars the power of the revision conferred upon the court in relation to any interlocutory order

passed in any proceedings. The maintainability of the revision petition depends upon the question as to whether the impugned order is an

interlocutory order or final order. In a case where a charge has been framed against the accused which is not made out from the evidence collected

by the prosecution during investigation is a final order and cannot be said to be an interlocutory order.

Without giving any finding as to whether a revision in such cases lies or not, the present petition is also maintainable because the

petitioneraccused has also made an alternate prayer in the petition under Section 561A Code of Criminal Procedure for quashing the impugned

order.

At the stage of framing charge, the Magistrate or Sessions Judge has to see as to whether prima facie in case is made out for the commission of

the offence from the evidence and material collected during investigation or in other words, the evidence collected during the investigation by the

investigating agency, if it remains unrebutted, warrants the conviction of the accused in the case. No inquiry in detail is required to be made and the

evidence so collected cannot be sifted. In case Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and

others, AIR 1980 Supreme Court 52, the Hon'ble Supreme Court of India in para18 observed as under:

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 meticulously 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 the charge against the accused in respect of the

commission of that offence.

Further in State of Orrisa Vs. Dabendera Nath, 2004 AIR SCW 6813, Hon'ble Apex Court has held as under:

Further, at the stage of framing charge roving and fishing enquiry 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 cannot be put forth.

From the above it emerges that at the time of framing of the charge no roving or detailed enquiry is required and it is to be seen as to whether

prima facie case is made out or not. The Hon'ble Apex Court in case Munna Devi Vs. State of Rajhasthan and another, (2001) 9 SCC 631 while

discussing the scope of revisional powers of the High Court in such case is held as under:

The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the

High Court has not authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers

could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the

facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for

which the accused has been charged.

I have perused the order passed by the learned Additional Sessions Judge Jammu and he has considered the matter on the facts of the case

and has also examined the matter placed before it under Section 173 Code of Criminal Procedure. The learned Additional Sessions Judge has on

application of the relevant case law on the issue to the facts of the case found that prima facie there was evidence pointing involvement of the

petitioneraccused in the commission of offence. The learned Sessions Judge has observed as under:

In the present case, there are two set of witnesses, the first set stating that accused Shamsher Singh fired in self defence and the other set stating

that accused Shamsher deliberately fired with his revolver at Vijay Kumar and thereby murdered him. No doubt, the said eyewitnesses namely

Vijay Paul and Sheelo Devi, related to deceased Vijay Kumar failed to point out the spot of occurrence but this by itself, at this stage, cannot be

taken as a ground to discharge the accused. On perusal of the material on record, I am of the view that prima facie offence u/s 302 RPC/30 Arms

Act is made out against accused Shamsher Singh. He is accordingly chargesheeted for the said offences. The chargesheet has been read over and

explained to accused. He has denied his guilt and claims trial.

The perusal of the impugned order in this petition it is clear that the learned Additional Sessions Judge has applied his mind to the facts of the

present case based on material placed before him under Section 173 Code of Criminal Procedure. There are two sets of evidence out of which

one set suggesting that the accused has committed the offence of murder and the other set suggesting that the accusedpetitioner fired in self

defence. In the circumstances, the learned Additional Sessions Judge was right in taking the view of framing charge under Section 302 RPC. In the

chargesheet i.e, final report under section 173 Code of Criminal Procedure, the story is given otherwise about the conclusion ignoring the evidence

of Viay Paul and Sheelo Devi.

In view of above, I feel that the impugned order does not require any interference at this stage and the learned Additional Sessions Judge,

Jammu has properly exercised his jurisdiction in framing charge against the accused as stated above. It is a settled position of law the charge can

be altered at any stage subsequent to the framing of the charge and the accusedpetitioner is at liberty to move an application for the same in case

the prosecution evidence recorded in the court suggests so at any stage.

In the circumstances, I do not find any illegality or irregularity in the order impugned and accordingly, the present petition is dismissed along

with connected Cr.M.P(s), if any.