Framing of Charge; Manojbhai Jashbhai Patel Vs. State [Gujarat High Court, 05-08-2016]

Criminal P.C. 1973 – Ss. 227 & 228 – Framing of Charge – Discharge Application – the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emeged from such material even if taken on their face value, is enough and disclosing the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept all that the prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

# Discharge of Accused


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL REVISION APPLICATION

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 05/08/2016

(AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 167 of 2016

MANOJBHAI JASHBHAI PATEL….Applicant(s) Versus STATE OF GUJARAT….Respondent(s)

Appearance: MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 MR KP RAVAL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1

JUDGMENT

1. Rule. Learned APP waives service of notice of rule on behalf of respondent – State.

2. Heard learned advocate Mr.Aamir S. Pathan for learned advocate Mr. Ashish Dagli for the applicant and leanred APP Mr. K. P. Raval for the respondent – State.

3. Applicant has prayed to quash and set aside the judgment and order dated 02.02.2016 by 3rd Additional Sessions Judge, Anand below Exhibit 7 in Special Atrocity Case No. 46 of 2015.

4. By such application, the applicant, being original accused has prayed the Sessions Court to discharge him from Special Atrocity Case No. 46 of 2015, which was initiated against him pursuant to Borsad Police Station I – C.R. No. 50 of 2014 under

# Sections 366, 506(II), 376 and 114 of the Indian Penal Code and Section 3(1), 11(d) and 3(2)5 of the Prevention of Atrocity against (Scheduled Caste and Scheduled Tribes) Act.

The application at exhibit 7 is preferred by present petitioner preferring to discharge him from the charges leveled against him contending that, practically he is merely a contractor who has agreed and entered into a contract for constructing a house at different places and on all such sites, he has to engage mason, laborer and daily wager. It is, therefore, contended that at village Bochasan, he has to construct the house of one Manojbhai where also he has engaged some skilled and un- skilled laborer and he simply supports the work and managing facility of such worker like drinking water etc and instructing them about the work but he is nowhere concerned with any such report in their personal life. It is further contended that accused No.1 Govindbhai had been working on such site and he has no other relation with such accused except for his work on site. However, when he went to the site for supervision, father of the victim has abused him and uttered unparliamentary language and, therefore, when he inquired about such behaviour, he came to know about the offence, for which FIR was lodged. It is further contended that, thereafter he has received several phone calls from the father of the victim threatening him to involve him in case under Atrocities Act and, therefore, he had addressed a letter to District Superintendent of Police, Collector, Police Sub Inspector and other officers complaining about the activities of father of the victim. Therefore, it is contended that he has been wrongly implicated in such case and, hence, he has prayed to discharge him.

4.1 It is also contended that, complaint is given after 24 hours and that except complainant, none of the witnesses has disclosed his name and that he is not aware that complainant and accused are of scheduled caste.

5. The Sessions Court has after hearing both the sides considering the available material on record dismissed the application by impugned order. Perusal of impugned order shows that the Sessions Court has taken care of material evidence before it and thereby prima facie, there is no irregularity or illegality in the impugned order. However, to appreciate the application for discharge and the impugned order, I have perused the available record which goes to show that in FIR itself, the victim has categorically disclosed the name of the petitioner as an accused with a statement that all the three accused including present petitioner had taken her and driven her without her consent by force in a rickshaw towards Dholka via Sojitra road. Therefore, when there is categorical disclosure of the role of the petitioner in the complaint itself and when offence is regarding Section 366 of the Indian Penal Code i.e. kidnapping of Woman by three accused to the place of incident, obviously there cannot be a reference of all accused in the statement of all the witnesses and thereby there is prima facie evidence against petitioner which results into dismissal of this application for discharge.

6. However, if we peruse the settled legal position so far as right to get discharge is concerned, it becomes clear that at the time of considering the application for discharge, Court has not to scrutinize the availability of entire evidence so as to arrive at any particularly findings regarding commission of offence by the accused, more particularly to confirm that whether there is every possibility of conviction of accused. What is required to be considered is to the limited extent to find out, whether there is prima facie evidence against the accused to believe that he has committed any offence as alleged in the charge-sheet. If prima facie the evidence is available against the accused then there cannot be an order of discharge.

7. It is to be considered that for framing of charge, the Court is required to form an opinion that there is ground for presuming that the accused has committed an offence. Considering above discussion, it is certain that offence has been committed. Then accused has to face the trial. If prosecution fails to prove the charge, he may be acquitted, but there cannot be order of discharge on presumption that there will be no evidence or no reason for conviction.

8. In support of my conclusion, reference to certain judgments of the Apex Court are necessary, which are as under.

# (1) Supdt. And Remembrance of Legal Affairs, West Bengal vs. Anil Kumar Bhunja, AIR 1980 SC 52

The law regarding discharging the accused u/s.227 of Cr. P. C. is now well settled as decided by the Full Bench of the Apex Court in that the standard 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 S.277 or S.228 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 charges against the accused in respect of the commission of that offence.

# (2) Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitender Bhimraj Bijja, AIR 1990 SC 1962 : (1990) 4 SCC 76

Wherein, the Full Bench of the Apex Court has held that consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused and with furtherance sufficient ground to proceed, charge shall be framed and that at that such stage, the trial Court has not to marshal the documents produced before it as it would do on the conclusion of evidence for deciding the charge.

8.1 The Apex Court considered the scope of S.227 and opined that Court is not expected to make a rowing inquiry into the pros and cons of the issue and weigh the evidence as if a trial is conducted. Accused can be discharged only when there is no prima facie ground to sustain the charge. What is required is the sufficiency of ground to sustain the charge. What is required is the sufficiency of ground for proceeding against the accused and not whether materials on record are sufficient for conviction.

8.2 After considering the provisions of Ss. 227 and 228 of Cr. P. C, Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged.

The Court may peruse the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof.

8.3 It is well settled that at the stage of framing charge the Court is not expected to go deep into the probative value of the material on record. If on the basis of materials on record the Court could come to the conclusion that the accused would have committed the offence, the Court is obliged to frame the charge and proceed to the trial.

# (3) Om Wati vs. State, AIR 2001 SC 1507

In it is observed that accused cannot be discharged on hypothesis, imagination and far-fetched reasons.

# (4) State of Maharashtra vs. Priya Sharan Maharaj, AIR 1997 SC 2041

It is held that at the stage of framing the charge, the Court has to consider the material with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction.

# (5) State of MP vs. SB Johari, AIR 2000 SC 665 : 2000 SCC(2) 57

It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of framing the 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 the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed 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 defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.

# (5) State of Orissa vs. Debendra Nath Padhi, 2005 SC 359

The Apex Court has held that, it is seen from S.227 of the Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so. This Section nowhere contemplates an opportunity being given to the accused person to produce evidence in defence at that stage. The section is quite clear that whatever consideration that has to be made by the Court, will have to be based on the record of the case and documents submitted therewith, and after hearing the submissions of the accused and the prosecution. If after doing so, the Court comes to the conclusion that there is a ground for presuming that the accused has committed an offence, then the Court shall frame charge u/s.228 of the Code, otherwise it shall discharge the accused under S.227 of the Code. It is further held that: It is clear that all that the Court has to do at the time of framing a charge is to consider the question of sufficiency of ground for proceeding against the accused on a general consideration of the materials placed before it by the investigating agency. There is no requirement in law that the Court at that stage should either given an opportunity to the accused to produce evidence in defence or consider such evidence the defence may produce at that stage.

# (6) State of Maharashtra vs. Priya Sharan Maharaj, (1997) 4 SCC 393 : 1997 AIR SCW 1833

Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that 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 there from 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 that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

# (7) State of MP vs. Mohan Lal Soni, AIR 2000 SC 2583

The Court while referring to several previous decisions, held that 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. It is further held that, each case depends upon its particular facts and circumstances and sometime even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out.

# (8) State of Maharashtra V/s. Som Nath Thapa, (1996) 4 SCC 695 : 1996 AIR SCW 1977

A three-Judge Bench of Hon’ble Supreme Courthas held that, 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 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.

# (9) State of U.P. V/s. Udai Narayan, AIR 1999 SC 3845 = 1999 AIR SCW 3921

The Apex Court has specifically determined in its decision reported in while dealing with the issue regarding discharge of accused from the charges under the Prevention of Corruption Act, 1988 that scanning and scrutinizing the evidence and materials produced by the prosecution is not permitted at the time of deciding the prayer for discharge and that positive conclusion on material record should be avoided as it may affect the trial.

# (10) State Of Himachal Pradesh Vs. Krishan Lal Pardhan, AIR 1987 SC 773

The Apex Court has held that for scrutiny within the limits of S. 239, Cr. P. C.,all that is required at the stage of framing of charges is to see whether a prima facie case regarding the commission of certain offences is made out. The question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case, which cannot be decided on merits without giving the prosecution an opportunity to adduce evidence against the accused.

# (11) Soma Chakravarty v. State, AIR 2007 SC 2149 : 2007 AIR SCW 3683

It is held as under: 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.

9. Thus, the law on the subject is now well-settle that while consisdering the discharge application, the Court is required to evaluate the material and documents on record for limited purpose i.e. to find out that whether facts emeged from such material even if taken on their face value, is enough and disclosing the existence of all the ingredients to constitute the alleged offences. The Court may, for this limited purpose, sift the evidence as it cannot be expected at such initial stage to accept all that the prosecution story as gospel truth even if it is opposed to commonsense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.

10. I have gone through the record of the case and I am of the opinion that there is sufficient evidence on record to prove the case of the prosecution, whereas explanation by the accused is not trust worthy, since not supported by the evidence less prima facie proof.

11. I have scrutinised the prima facie evidence on record which categorically proves the involvement of the accused in commission of crime and that there is prima facie evidence against him for framing the charges, hence the revision deserves to be dismissed.

12. The revision application is dismissed. Rule discharged.

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