Sumanjit Singh vs Satish Kumar and another

S.D. Bajaj, J.

Sumanjit Singh purchased Shed No. B20 situated in Industrial Area, Malerkotla from the Industries Department. Adjoining owner of shed No. B10 named Satish Kumar allegedly trespassed into it on March 16, 1981 and removed the iron sheets placed on the roof of Shed No. B20. Finding a prima facie case on the basis of contents of DDR No. 17 dated March 16, 1981 recorded in Police Station, Malerkotla, report of enquiry submitted by DSP and the contents of the statements of the prosecution witnesses recorded under Section 161 Cr.P.C. learned trial Court framed the charge against the accused Satish Kumar on May 4, 1984 under Sections 488 and 427 of the Indian Penal Code.

In the Criminal Revision, learned Additional Sessions Judge, Sangrur vide his impugned order dated September 12, 1985 found that the statement of Narain Dewan recorded by S.I Joginder Singh in the course of investigation on October, 18, 1982 had escaped perusal of the learned trial Court wherein the witness was recorded to have told the police that accused Satish Kumar entered into possession of Shed No. B10 in 1974 and that wife of Satish Kumar and owner of the Shed named Sumanjit Singh were doing joint business therein and that as stated by Mohan Lal an attesting witness of the Panchnama prepared on February 6, 1981 raiding party of the Income Tax Department had found the material of Satish Kumar lying in Shed No. B20 of Sumanjit Singh on that day. In this view of the matter Satish Kumar was in possession of Shed No. B20 with effect from 1974 and the assertion in the Daily Diary Report No. 17 that he had entered into forcible possession of it on March 16, 1981 was a faked one and stood belied from the depositions of Narain Dewan and Mohan Lal aforesaid recorded by the police under Section 161 Cr.P.C. Allegation of mischief by removal of the tin sheets from the roof of Shed No. 20B on March 16, 1981 was also rendered groundless thereby.

It was urged by leaned counsel for the petitioner that learned Additional Session Judge could not substitute his own reasoning for the reasoning spelt out by the learned trial Court and discharge the accused. Nagawwa v. Veeranna, AIR 1976 SC 1974; State of Punjab v. Sudhir Mittal, 1985 All India Criminal Law Reporter 279; Kartar Kaur v. Bikkar, Vol LXXXVII 1985 (1) PLR 193; Ram Sarup v. Devi Dayal, 1988(1) Chandigarh Law Reporter 187; Naranjan Singh Karam Singh Punjabi Advocates v. Jitendra Bhimral Bijja and others, 1991(1) Recent Criminal Reports 89 and State of Haryana v. Bhajan Lal, 1991(1) R.C.R.(Criminal) 383 : AIR 1992 SC 604 have been cited as authorities in support of the contention. There is absolutely no merit in the argument nor do the authorizes cited support it.

The reasoning given by learned Additional Sessions Judge while upsetting the finding of the learned trial Court is that statement of Narinder Dewan recorded by SI Joginder Singh on October 18, 1982 as also the statement of Mohan Lal were both not adverted to or considered by the learned trial Court while deciding the existence of prima facie ground for presuming that the accused had committed the offence under Sections 448 and 427 of the Indian Penal Code, that both these statements clearly negatived the existence of any prima facie ground for presuming the commission of these offences by the accused qua Shed B 20 and that these statements had initially been with held by the Police. Observations made by the learned Appellate Court in this regard read, "Before paring with this judgment it will not be out of place to mention here that during the course of arguments, the prosecution moved an application for summoning the application given by the petitioner against the local police. It is alleged that the petitioner has attached the photostat copy of the statement of Narain Dewan (PW) recorded by S.I. Joginder Singh on 18.10.1982. In pursuance of this application filed by the prosecution the enquiry file was produced in the court from the office of the Senior Superintendent of Police, Sangrur which was seen by the learned Additional Public Prosecutor Sh. K.C. Verma and had stated that the said file does not contain the photostat copy of the statement of Narain Dewan recorded by S.I. Joginder Singh and that the has also confirmed from Sh. Prem Juman, Clerk, of the office of the Senior Superintendent of Police, Sangrur that a photostat copy of the alleged statement is not in existence or on the file. I have myself gone through the enquiry report conducted on the complaint of Satish Kumar petitioner. The enquiry file does not contain the photostat copy of the statement of Narain Dewan (PW) recorded by S.I. Joginder Singh. The perusal of this file goes to show that there is one statement of Narain Dewan recorded on 18.10.1982 by SI Joginder Singh. This copy of the statement which exists on plot No. B20 had been given to the petitioner Satish Kumar and that Sumanjit Singh and the wife of Satish Kumar had started a spareparts shop. This statement further reveals that in the year 1980 Sumanjit Singh wanted to get the shed vacated from the petitioner, the possession of which was delivered by him to Satish Kumar petitioner in the year 1947. In this statement, it has been further mentioned that Satish Kumar had not broken open the locks of the shed on 16.3.1981 as has been alleged by the complainant Sumanjit Singh. In view of these circumstances, I am constrained to observe that the investigation of this case has not been done by the police investigating agency fairly and impartially and the police investigating agency had been playing hide and seek game at the instance of the parties concernment. Under these circumstances, if at all the petitioner is in possession of plot No. B20, without any right or title Sumanjit Singh complainant could seek civil remedy to get back the possession of plot in question."

In State of Karnataka v. L. Muniswamy and others, AIR 1977 S.C. 1489 their Lordships of the Supreme Court observed, "On the other hand, the decisions city by learned counsel for the respondents in Vadila Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning and Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person''s liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing on the charge. It cannot kindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal''s case Section 203 of the old Code was under consideration, which proved that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 227 of the new Code contains an analogus power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the Old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground or proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record if unrebutted is such on the basis of which a conviction can be said reasonably to be possible."

Again in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, 1981(1) Recent Criminal Reports 89 their lordships of the Supreme Court observed, "6. The next question is what is the scope and ambit of the `consideration'' by the trial Court at the stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily record and documents constitute the offence with which the accused is charged. At that stage he may sift and marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weight the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh, (1978) 1 SCR 257, this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion/evidence who 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. 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 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. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCR 29 : AIR 1979 SC 366, this Court after considering the scope of Section 228 observed that the words `no sufficient ground for proceeding against the accused, clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the Court to enter into the pros and cons of the mater or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject this Court deduced as under :

"(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 material 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 adduced before him while giving rise to some suspicion but not grave suspicion against the accused he will be fully within his rights to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code tha Judge which (sic) under the present Code is a senior and experienced Judge Cannot act merely as a post office or a mouthpiece 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 the was conducting a trial."

Again in Supertendent and Remembrancer of Legal Affairs,'' West Bengal v. Anil Kumar Bhunja, (1979)4 SCC 274, this 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 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 charge against the accused in respect of the commission of that offence."

From the above discussion it seems well settled that at the Section 227228 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 the initial stage to accept all that the prosecution states as gospel truth event if it is opposed to common sense or the broad probabilities of the case.

In this view of the matter Criminal Revision No. 330 of 1981 gets completely bereft of any merit therein and is consequently dismissed.