Vikram Singh vs State Of Madhya Pradesh

This Criminal Revision under Section 397 read with Section 401 of the Cr.P.C has been filed against the order dated 9.2.2018 passed by the Additional

Session Judge, Mahidpur District Ujjain in S.T.No.60/2018 by which the trial Court has framed the charge under Sections 307/34, 323/34 (Two

counts), 294 and 506 part II of IPC.

The necessary facts for the disposal of the present revision in short are that the complainant Anup Kumar Bhargav lodged a FIR on 5.10.2017 at

about 3.00 am, on the allegation that, the house of his uncle is situated adjoining to the house of the complainant and his cousin brothers use to quarrel

with him very frequently. On 4.10.2017, the construction work of his house was going on, and on that issue the accused Vikram Singh came there and

started abusing the labours and forced them to run away. When the complainant came back to his house, then he came to known about the incident. It

was already 10.00 in the night. He asked the accused to come out of the house and when the complainant inquired as to why he has forced the

labours to close the work then the accused Vikram started abusing him.

When the complainant objected to it, then he slapped the complainant and went home. Thereafter, the applicants came in front of the house of the

complainant and started abusing him.When the complainant requested them not to behave in such a manner, then the applicant no.1 Vikram assaulted

on the head of the complainant by means of an iron rod; whereas the other applicants assaulted the complainant by means of Lathis, as a result of

which he fell down. After hearing the shouts of the complainant his father intervened in the matter he too was assaulted. While fleeing away, the

applicant no.3 extended the threat with the life of the complainant. The matter was intervened by the neighbours as well as mother of the complainant.

The injured persons were brought to the hospital where the “Dehati Nalshiâ€​ was lodged.

It is submitted by counsel for the applicants that the allegation against the applicants no.2 to 4 of assaulting the injured persons is not corroborated by

their MLC report and thus it is clear that, the applicants no.2 to 4 have been over implicated and under these circumstances where the possibility of

the conviction of applicants no.2 to 4 is bleak, then the trial Court should not have framed the charges against the applicants no.2 to 4. It is further

submitted that where a specific allegation has been made against a person and if it is not found corroborated by the medical evidence available on

record, then it can be presumed that the said accused has been over implicated and under these circumstances, the question of common intention also

does not arise because the presence of the said accused on the spot also becomes doubtful. It is further submitted that all the applicants are the

members of the same family and in order to falsely implicate the entire family, the false allegations have been made against the family members.

Per contra, it is submitted by the counsel for the respondent State that the possibility of the conviction of an accused cannot be a basis for framing

charge. Even if there is a grave suspicion against the accused to the effect that he might have been committed an offence then it is sufficient to frame

charges.

Heard learned counsel for the parties.

Before considering the submission made by the counsel for the parties, it would be appropriate to consider the scope of interference at the stage of

framing of 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€​

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 to be 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€​

The Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in 2010 CRI. L.J. 1427 has held as under:-

“10. 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. Further, the words “not

sufficient ground for proceeding against the accused†clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the

prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether 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 matter or into a weighing and balancing of

evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the

evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground

would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that

there are suspicious circumstances against the accused so as to frame a charge against him.â€​

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 Union of India vs. Prafulla Kumar Samal reported in AIR 1979 SC 366 has held 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 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 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 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.â€​

The Supreme Court in the case of Niranjan Singh vs. K.S. Punjabi vs. Jitendra Bhimraj Bijjaya reported in AIR 1990 SC 1869 has held as under:-

“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 be limited to deciding if the facts emerging from the record and documents

constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to

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 weigh the material on record as well as the documents relied on by the prosecution. In the State

of Bihar v. Ramesh Singh (AIR 1977 SC 2018) this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-

evidence 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. 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 (AIR

1979 SC 366) this Court after considering the scope of Section 227 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 matter 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.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€​

20 to 26 x x x x x x x

Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional

distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is

not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this

Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge

either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is

to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the

Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. 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.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in

conviction or not at the stage of framing of charge or quashing of charge.

27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might

be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in

exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution

and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the

offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a

“civil wrong†with no “element of criminality†and does not satisfy the basic ingredients of a criminal offence, the court may be justified in

quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to

determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the

allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating

agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a

criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by

an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the

record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be

more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a

view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge- sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its

jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice

favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of

which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v.

Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 :

AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2

SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate

[(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh

Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1

SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC

1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC

234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan

Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 :

AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. 8 MCRC.6606/2015 Krishnan v. Vijay Singh

[(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of

Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of

extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. 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.

x x x x x x x

In the light of the above principles, now if we examine the findings recorded by the High Court, then it is evident that what weighed with the High

Court was that firstly it was an abuse of the process of court and, secondly, it was a case of civil nature and that the facts, as stated, would not

constitute an offence under Section 306 read with Section 107 IPC. Interestingly and as is evident from the findings recorded by the High Court

reproduced supra that “this aspect of the matter will get unravelled only after a full-fledged trialâ€, once the High Court itself was of the opinion

that clear facts and correctness of the allegations made can be examined only upon full trial, where was the need for the Court to quash the charge

under Section 306 at that stage. Framing of charge is a kind of tentative view that the trial court forms in terms of Section 228 which is subject to final

culmination of the proceedings.

We have already noticed that the legislature in its wisdom has used the expression “there is ground for presuming that the accused has

committed an offenceâ€​.

This has an inbuilt element of presumption once the ingredients of an offence with reference to the allegations made are satisfied, the Court would not

doubt the case of the prosecution unduly and extend its jurisdiction to quash the charge in haste. A Bench of this Court in State of Maharashtra v.

Som Nath Thapa (1996) 4 SCC 659 referred to the meaning of the word “presume†while relying upon Black’s Law Dictionary . It was

defined to mean “to believe or accept upon probable evidenceâ€; “to take as proved until evidence to the contrary is forthcomingâ€. In other

words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross-examined by the defence, the

incriminating material and evidence is put to the accused in terms of Section 313 of the Code and then the accused is provided an opportunity to lead

defence, if any. It is only upon completion of such steps that the trial concludes with the court forming its final opinion and delivering its judgment.

Merely because there was a civil transaction between the parties would not by itself alter the status of the allegations constituting the criminal

offence.â€​

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

suspicion is sufficient to frame the charges, even the roving enquiry at the stage of framing of charges is not permissible. Whether the statement of a

witness is reliable or not cannot be considered at the stage of framing of the charges.

In the present case, there is a specific allegation against the applicant no.1 of having assaulted the complainant on his head by means of an Iron rod. It

is the submission of counsel for the applicants that, since the injuries found on the body of the complainant and another injured do not corroborate the

allegations made against the applicants no.2 to 4; therefore, it is clear that the statement of witnesses with regard to the allegations against the

applicants no.2 to 4 are not reliable. The submission made by the counsel for the applicants cannot be accepted at this stage because whether the

applicants had participated in the assault or not, whether they were present on the spot or not and whether they were sharing the common intention or

not, are certain questions which are highly disputed in nature and cannot be decided at the stage of framing of charges. Appreciation of evidence at

this stage is not permissible.

Under these circumstances, this Court is of the considered opinion that there is a sufficient material available on record, warranting the framing of

charge under Sections 307/34,323/34 (Two Counts),294 & 506 part II of IPC. Resultantly, the order dated 9.2.2018 passed by Additional Sessions

Judge, Mahidpur,District Ujjain in S.T.No.60/2018 is hereby affirmed.

Before parting with this order, this Court feels it appropriate to issue a word of caution to the effect that the trial Court should not get prejudiced by

any of the observations made by this Court in this order, because this revision has been decided considering the limited scope of interference at this

stage. The trial court is requested to decide the trial strictly in accordance with the evidence which would ultimately come on record.

The revision fails and is hereby dismissed.