Sunil Singh vs State of Rajasthan and Another

R.S. Chauhan, J.—The petitioner is aggrieved by the order dated 29.11.2011 passed by the Additional Chief Judicial Magistrate No. 1, Kota, whereby the learned Magistrate has framed charges against the petitioner for the offences under Sections 420, 406 and 120B IPC. The petitioner is also aggrieved by the order dated 17.08.2012 passed by the Additional District & Sessions Judge No. 5, Kota, whereby the learned Judge has dismissed the petitioner''s revision petition and has upheld the order dated 29.11.2011. Brief facts of the case are that the complainant-respondent, Rajesh Sharma had lodged FIR No. 8/2007 against the petitioner and one Surya Pratap Singh on 16.01.2007 at Police Station Railway Colony, Kota for the offences under Sections 420, 406, 120B IPC. After a through investigation, the police filed a charge-sheet in the Court of Additional Chief Judicial Magistrate No. 1, Kota against Surya Pratap Singh u/s 299 Cr. P.C. Surya Pratap Singh absconded and after thorough investigation, police found that the petitioner was having no role in the case. Thus, a final report was submitted on 11.07.2007 in favour of the petitioner. Thereafter, the complainant filed a protest petition before the trial Court along with his statement and statements of Rajesh Yaduvanshi, Harish Nihalani and Ravindra Parihar. It seems that the trial against Surya Pratap Singh continued in his absence and the testimonies of four witnesses, namely PW 1 Rajesh Yaduvanshi, PW 2 Harish Kumar Nihalani, PW 3 Ravindra Parihar and PW 4 Rajesh Sharma, were recorded,. Subsequently, the prosecution filed an application u/s 319 Cr.P.C. for issuing process against the petitioner, as evidence about his involvement in the commission of the offence had started coming in during the course of the trial. By order dated 20.08.2010, the learned Magistrate issued process against the petitioner. By order dated 29.11.2011, the learned Magistrate framed the charges against the petitioner for the offences under Sections 420, 406 and 120B IPC. Since the petitioner was aggrieved by the order dated 29.11.2011, he filed a revision petition before the learned Judge. However, vide order dated 17.08.2012, the learned Judge has dismissed the revision petition and upheld the order dated 29.11.2011. Hence, this petition before this Court.

The learned counsel for the petitioner contended that while issuing process u/s 319 Cr. P.C., the learned Magistrate had relied upon the testimonies of PW 1 to PW 4. However, the testimony of Rajesh Yaduvanshi (P.W. 1) itself is sufficient to knock the bottom out of the case of the prosecution. For, according to Rajesh Yaduvanshi, after the complainant Rajesh Sharma and Surya Pratap Singh had entered into an agreement to sell on 21.04.2006, Surya Pratap Singh had entered into a agreement with Rajesh Yaduvanshi on 27.11.2006. The complainant, Rajesh Sharma, in fact, was witness to the said transaction. Thus, Rajesh Sharma was very well aware of the fact that after the agreement on 21.04.2006, subsequently Surya Pratap had sold his property to Rajesh Yaduvanshi himself on 27.11.2006.

Secondly, the fact that there was subsequent sale by Surya Pratap to Rajesh Yaduvanshi, clearly establishes that the agreement entered between Surya Pratap and Rajesh Sharma had come to knot.

Thirdly, Rajesh Sharma had hidden this crucial fact from the police and from the trial Court. Therefore, the learned Magistrate was not justified in framing charges for the aforementioned offence against the petitioner by order dated 29.11.2011.

Fourthly, the learned Judge has dismissed the revision petition, filed by the petitioner, just in three lines. Hence, the order dated 17.08.2012 suffers from non-application of mind. Thus, both the orders deserve to be interfered with by this Court.

Heard the learned counsel for the petitioner and perused both the impugned orders.

Admittedly, the FIR was lodged by Rajesh Sharma only against Surya Pratap Singh and Sunil Singh. However, after a thorough investigation, a charge-sheet was filed only against Surya Pratap Singh and not against the petitioner, Sunil Singh. It is only after recording the testimonies of PW 1 to PW 4 that an application u/s 319 Cr.P.C. was moved by the prosecution against the petitioner. The said application was allowed by order dated 20.08.2010. Admittedly, the said order was never challenged by the petitioner. Thus, at the time of framing of the charge, the learned Magistrate had only the testimonies of PW 1 to PW 4 before him.

In the case of Sajjan Kumar Vs. Central Bureau of Investigation, , the Hon''ble Supreme Court has laid down the guidelines for framing of the charge, which are as under:-

On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges u/s 227 Cr PC 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The Court 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 basis infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the 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.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.

Thus, at the time of framing of the charge, the learned trial Court is not permitted to meticulously examine the evidence. The trial Court is concerned only with mere existence of the strong prima-facie case against the accused person. At this juncture, the Court is not concerned with the possibility of conviction of the alleged accused. Hence, even if the testimony of Rajesh Yaduvanshi (P.W. 1) was sufficient to knock the bottom out of the case of the prosecution, even then at the time of framing of the charge, the Court cannot consider and critically analyze the testimonies of PW 1 to PW 4. Hence, the contention raised by the learned counsel that the testimony of PW 1 belies the prosecution case, cannot be accepted at this juncture.

As far as the order dated 17.08.2012 is concerned, the learned Judge has considered the fact that before framing charge, there were testimonies of four witnesses available before the trial Court. He has also considered the fact that the complaint filed by the complainant, Rajesh Sharma against Surya Pratap Singh was also placed before the learned trial Court. The allegations made in the civil suit, are similar to the allegations made in the FIR and allegations made in the testimony of Rajesh Sharma (P.W. 4). Thus, the learned Judge was justified in concluding that the trial Court had sufficient evidence before it for framing of the charges against the petitioner for the aforementioned offences. For the reasons stated above, this Court does not find any merit in this petition, it is hereby dismissed. The stay application also stands dismissed.