Rakesh and Others vs State of U.P. and Others

Rajesh Chandra, J.—Revisionists Rakesh, Anil and Ajay have filed this revision against the order dated 20.7.09 passed by Chief Judicial Magistrate, Mathura rejecting the application of the applicants for their discharge in case No. 296/05 u/s 420, 406, 506, I.P.C. & Section 20 of Mines and Minerals Act.

In brief, the facts of the case are that the first informant Surendra Kumar gave an affidavit to the Circle Officer, Sadar Mathura, deposing therein that about three years back Raghunath Mallah, who was known to him, told that some devotee had offered ring, bangles and ''kundal'' to the holy river Yamuna and probably these ornaments are of diamond. The first informant examined those ornaments and found them to be worth Rs. 1.5 crore. The first informant advised Raghunath either to dedicate those ornaments again to the holy river Yamuna or to deposit them in the Government treasury. Raghunath after consultation with his brothers handed over the ornaments to the first informant Surendra with a direction that the ornaments may be deposited with the treasury. When the first informant Surendra was returning to Mathura the accused Rakesh and Anil met him. They were the known jewellers of the city. The first informant showed these ornaments to them and narrated the entire story. They both examined the ornaments and told that they are precious. Rakesh and Anil then said that the ornaments be deposited in the office of the Collector. The first informant, Rakesh and Anil came to the office of Collector. Rakesh went in side and on his return told that the Collector is not there. The first informant then suggested that the ornaments may be given to the Collector at his residence but they both said that the ornaments will be given in the office. The allegation of the first informant Surendra is that since he was having cordial relations with Rakesh and Anil and since they were the big businessmen he left the bag with them. They assured that they will deposit the ornaments in the office of the collector next day. When the first informant made enquiries from them they confirmed that the ornaments have been deposited in the office. However the first informant being suspicious made an enquiry and found that the ornaments were not deposited in the office of the collector. When the first informant made enquiries from them in this regard they threatened and said that they will manage to send the first informant to jail. It was also mentioned that in the affidavit that their brother Ajay is the head of the family and is famous for such type of cheating. It was also mentioned that the accused Anil, Rakesh and their brother Ajay are threatening to kill. According to the first informant when he visited the house of Rakesh and Anil he was accompanied by Praveen, Horilal, Gopal, Lalchand, Viswanath and Kishanlal.

On the basis of this affidavit an enquiry was made by the Circle Officer and sufficient evidence was collected. The FIR thenwas lodged against the three accused-persons. The case was registered at the PS at crime No. 68/05 and after investigation a final report was submitted in favour of the accused. After receipt of the final report a notice was sent to the first informant Surendra who in return filed protest petition. The Chief Judicial Magistrate Mathura rejected the protest petition and accepted the final report vide order dated 4.6.07. First informant Surendra filed a criminal revision No. 383/07 which was ultimately allowed by the Additional Sessions Judge Mathura vide order dated 18.6.08. The Revisional Court directed that the Magistrate shall decide the protest petition in the light of the observations made in the judgment of the revisional court. The matter again reached in the court of C.J.M. Mathura, who after hearing the complainant rejected the final report and summoned the accused Rakesh, Anil and Ajay for the aforesaid offences against the summoning order the applicants filed criminal miscellaneous application No. 15506/09 before the Hon''ble Allahabad High Court but that application was dismissed vide order dated 7.7.09. The applicants then moved an application for their discharge alleging therein that there is no reliable evidence against the applicants, the report lodged against them has been filed with inordinate delay and under suspicious circumstances and since there was no evidence against them, the investigating officer had submitted a final report in their favour. It was also mentioned in the application that in the FIR it has not been mentioned as to when the ornaments were given to the accused and at what time and place.

The learned Magistrate after hearing the parties rejected the discharge application vide order dated 20.7.09 and it is this order which has been challenged in this revision.

I have heard the learned Counsel for the revisionists as well as the learned A.G.A. and perused the papers as have been filed by the revisionists with the revision.

Learned Counsel for the revisionists argued that it has not been mentioned in the affidavit of Surendra Kumar as to when the ornaments were given to the accused. It has also not been mentioned as to at what time and place the ornaments were handed over to the accused persons. During investigation the investigating officer came to the conclusion that no offence is made out against the accused and as such submitted final report which was wrongly rejected by the Magistrate on the basis of protest petition. The contention is that the report was lodged after a long gap and it has not been explained as to why the FIR was not lodged earlier. It was also argued that it is the first informant Surendra himself who in collusion with the local police has misappropriated the ornaments which were taken from Raghunath Mallah and he has involved the accused persons to save his skin.

The learned A.G.A. on the other hand argued that at the time of framing the charge only a prima facie case has to be seen and if the same is made out from the evidence collected during investigation, the charges can be framed by the Magistrate.

I considered over the respective arguments and I feel that the submissions made by the learned Counsel for the revisionists do not contain any water. It is an established principal of law that the charge may be framed against accused even where there is a strong suspicion that the accused has committed the offence. In this connection the judgement of Hon''ble Supreme Court in Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary and Others, may be referred in which it was held that

even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction.

Similarly Hon''ble Supreme Court in Soma Chakravarty v. State through C.B.I. (2007) 2 SCC (Cri) 514 held as under:

it may be mentioned that the settled legal position, 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.

In the case at hand there is evidence of Raghunath Mallah that he had given ornaments to Surendra Kumar for depositing the same in the Government treasury. Again there is evidence of the complainant Surendra Kumar that these ornaments were given by him to Anil and Rakesh which they did not deposit in the Government treasury. He has also stated that Rakesh is their brother and is infamous for cheating. He has also threatened the complainant of dire consequences if any statement was given against them. The revisionists have not filed the statement of Pravin Sharma recorded u/s 161 Cr.P.C. but there is a mention in the judgment of the additional session judge Court No. 7 Mathura that this witness Pravin has also supported the FIR version. Thus there is sufficient prima facie evidence against the accused persons for framing the charges and as such I do not find any illegality in the order of the Chief Judicial Magistrate, Mathura in rejecting the discharge application of the accused-revisionists. There is no ground for interfering in the impugned order and as such the revision is liable to dismiss.

The revision is dismissed.