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
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.