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Judgment
S.G. Shah, J.—Applicants have prayed to quashed and set aside the judgment and order dated 30.07.2013 by 3rd Additional District Judge, Kalol below Exhibit 8 in Sessions Case No. 8 of 2013. By such application, the applicants, being original accused have prayed the Sessions Court to discharge them from Criminal Case No. 2884 of 2012 which was initiated against them pursuant to Kalol City Police Station II- C.R. No. 317 of 2012 under Sections 506(II) and 114 of the Indian Penal Code. However by an order dated 02.03.2013 allegations u/s 306 of the Indian Penal Code was added because victim of the accident died pending investigation and trial and therefore considering his dying declaration before the Executive Magistrate, Section 306 was added even after framing of charge against the applicants under Sections 506(II) and 114 of the Indian Penal Code. Thereupon the case was committed before the Sessions Court and numbered as Sessions Case No. 8 of 2013.
Thereby, fact remains that practically charge under Sections 506(II) and 114 of the Indian Penal Code has already been framed against the accused but when charge u/s 306 of the IPC was added, applicants have taken a chance by an application for discharge to get them release or to delay the process, which ultimately dismissed by the Sessions Court.
On perusal of available record and after hearing both the parties it becomes clear that practically there is no substance in the application in as much as the law relating to framing of charge and discharge of accused without trial is now well settled, which confirms that at such stage entire evidence is not to be evaluated so as to arrive at particular decision that whether there is possibility of conviction or not. The only requirement is existence of prima-facie evidence so as to confirm particular offence and connection of accused with such offence.
In the present case, the fact remains that victim has died because of threats given by the present applicants, who are in-laws of victim and when victim has categorically stated before the investigating officer that applicants have given him threats to kill and therefore, he poured kerosene and ablaze himself in fear of applicants, who were torturing him both physically and mentally.
Applicants have relied upon decision in case of Sanju @ Sanjay Singh Sengar Vs. State of Madhya Pradesh, wherein the Honourable Apex Court has quashed and set aside the charge-sheet u/s 306 of the Indian Penal Code against accused because deceased committed suicide after two days of quarrel, when only allegation is that "go and die" by husband to the wife. However, only because of setting aside of charge-sheet in such reported case, it cannot be said that in every case of suicide based upon other evidence, charge cannot be framed or that charge-sheet should be quashed and set aside.
5.1 Petitioner has also relied upon a decision in case of Praveen Pradhan Vs. State of Uttranchal and Another, wherein the Apex Court has found the word "instigate" stating that words utter in a fit of anger or emotion without any intention cannot be termed as instigation. However, in the same case, the Honourable Apex Court has also confirmed that persistent harassment leads to suicide and Supreme Court has refused to quash the criminal proceedings. This decision cannot help the petitioners to get themselves discharge.
5.2 Petitioner has also relied upon the decision in case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, wherein the Apex Court has stated that. Courts are not mere Post Office and Court shall not make roving inquiry into the pros and cons of the matter and weigh the evidence as if the Court is conducting a trial. However, Court was mainly dealing with interpretation of criminal conspiracy as well as improper legal advice and wrong legal advise. It is held that in absence of original conspirator and thereby in exceptional legal opinion would not amount to conspiracy. However, only because of some benefit is extended in such reported cases mainly because of facts and circumstances of that case, it cannot be said that because Apex Court has extended benefit of discharge in such reported case, it should be extended to all the accused in all cases.
5.3 In case of Bharat Parikh Vs. C.B.I. and Another, the Apex Court has held that the trial Court can look into the material produced by the prosecution and while framing the charge may give opportunity to the accused to show that the said materials were insufficient for the purpose of framing charge. However, it is made clear that question of discharge after framing of charge does not arise even if more documents are produced at subsequent stage.
5.4 Whereas in the case of R.S. Mishra Vs. State of Orissa and Others, the Apex Court has dealt with the issue regarding dilution of charge confirming that while passing such order of charge reasons should be given, however confirming that while passing such order, the Court should safeguard each does not take part for application of discharge. Therefore also such judgment does not help the petitioner to get discharge from the charges leveled against him because in fact there is no dilution of charge.
However, if we perused 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 there is every possibility of conviction of accused. What is required to be considered 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.
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 discharged on presumption that there will be no evidence or no reason for conviction.
In support of my conclusion, reference to certain judgments of the Apex Court are necessary, which are as under.
(1) Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others,
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 and Others Vs. Jitendra Bhimraj Bijja and others,
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) Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others,
In it is observed that accused cannot be discharged on hypothesis, imagination and far-fetched reasons.
(4) State of Maharashtra Vs. Priya Sharan Maharaj and Others,
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 M.P. Vs. S.B. Johari and Others,
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.
(6) State of Orissa Vs. Debendra Nath Padhi,
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.
(7) State of Maharashtra Vs. Priya Sharan Maharaj and Others,
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.
(8) State of Madhya Pradesh Vs. Mohanlal Soni,
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.
(9) State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc.,
A three-Judge Bench of Hon''ble Supreme Court has 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.
(10) State of U.P. Vs. Udai Narayan and Another,
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.
(11) State of Himachal Pradesh Vs. Krishan Lal Pardhan and Others,
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.
(12) Soma Chakravarty Vs. State through CBI,
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.
Thus, the law on the subject is now well-settle that while considering 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 emerged 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.
The question whether their is conspiracy and forgery is not an abstract question of law but is a matter of evidence and cannot be considered at this stage. However 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, where as explanation by the accused is not trust worthy, since not supported by the evidence less prima facie proof.
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 by following final order: The revision application is dismissed. Rule discharged.