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HIGH COURT OF DELHI
Date of Decision: 24.01.2020
IN THE MATTER OF:
ASHOK KUMAR ..... Petitioner
Through: Mr. Tanmay Nagar, Advocate
Through: Ms. Aashaa Tiwari, APP for State
JUDGMENT
1. The present revision petition is directed against the order dated 12.09.2019 passed by the Additional Sessions Judge arising out of FIR No.206/2016 registered under Section 420/468/471/120B/34 IPC P.S. Sonia Vihar.
2. The facts noted in the impugned order are reproduced below:-
3. After completing investigation, charge-sheet was filed against the present petitioner as well as co-accused Yashpal. The ACMM vide order 06.02.2019 discharged present petitioner of all the offences and passed an order framing charge against co-accused Yashpal only under Section 420 IPC. The State has challenged the aforesaid order before the Sessions Court by filing a revision petition resulting in passing of the impugned order whereby the Sessions Court set aside the order to the extent whereby the petitioner was discharged for offences punishable under Sections 420/471/120B IPC. The order of discharge for the co-accused under Section 471/120B IPC was also set aside. The accused persons were directed to appear before the trial court on 21.09.2019 and the trial court was directed to frame charge against the petitioner in terms of the order passed.
4. Learned counsel for the petitioner contended that the first agreement dated 09.03.2012 stated to be executed between Sandhya Goel and Yashpal Singh was never sent for FSL examination for handwriting opinion as Sandhya Goel had denied execution of the aforesaid exhibit. He further contended that in view of denial by Shri Rajbir, the Notary Public, who purportedly attested the agreement, it was much more required that the agreement ought to have been sent for FSL examination. Lastly, it was contended that the petitioner was not shown to be present at the time of the execution of the aforesaid agreement, thus, no case is made out against the present petitioner. So far as second agreement i.e., an agreement dated 28.08.2012 between the complainant and Yashpal is concerned, it was contended that the petitioner was neither signatory nor an attesting witness of the same.
5. Learned APP for the State, on the other hand, has supported the impugned order.
6. The scope of revision under Section 397 Cr.P.C. has been discussed in the case of Amit Kapoor Vs Ramesh Chander and Anr. reported as (2012)9SCC460 as under:- “27. 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.
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.”
7. In Sajjan Kumar Vs. Central Bureau of Investigation reported as 2010(10)SCALE22, it has been held as under:- “20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Sections 227 and 228 CrPC
21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case.
(ii) 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.
(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the 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.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) 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 therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. 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 even if it is opposed to common sense or the broad probabilities of the case.
(vii) 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.”
8. The complainant in his complaint had stated that while he was looking to purchase an immoveable property, he came across the petitioner and co-accused Yashpal who were known property dealers. Both of them had promised to arrange a land for him having clear title. Once again, both of them met him and showed an agreement dated 09.03.2012 executed between Sandhya Goel and Yashpal. On the basis of the assurance given by the petitioner, he entered into an agreement with Yashpal. It was also stated that the consideration amount was paid to Yashpal in the presence of the present petitioner and the said amount was taken by both of them. The complainant subsequently met both, the petitioner and Yashpal, seeking transfer of the above said land. Subsequently, he came to know that the petitioner and Yashpal had also cheated one Vijay Singh for which FIR No.1414/2015 was registered in P.S. Sonia Vihar.
9. During investigation, the Investigating Officer recorded the statement of Mewa Ram Bhardwaj and Rahul Kumar, the attesting witnesses of the agreement executed between the complainant and Yashpal, who have identified their signatures on the agreement. Further, Mewa Ram Bhardwaj also stated about the involvement of the present petitioner right from the beginning.
10. As per the FSL report, the signatures of co-accused Yashpal have been verified on the agreement dated 28.08.2012.
11. In the opinion of this Court, the Sessions Court has rightly come to the conclusion that prima facie, the petitioner had played an active role in the conspiracy to cheat the complainant by using an agreement which has been denied by the maker of it. The presence of the petitioner has been mentioned right from the beginning when the complainant was looking to purchase the property. He gave assurance to the complainant about the agreement dated 09.03.2012. He remained present at the time of execution of the agreement and payment of consideration.
12. In view of the above, it cannot be said that the petitioner had not played any role in the entire transaction and thus liable to be discharged. This court is of the view that prima facie a case of strong suspicion has been made out against the petitioner. I find no illegality, perversity or infirmity with the impugned order passed by the Session Court. Accordingly, the revision petition is dismissed. The pending applications are also disposed of.
13. Needless to state that nothing stated herein above shall be considered as an expression on the merits of the case as the present case has been disposed only on prima facie view of the matter. The concerned Court shall consider the case without being influenced by the order passed by this Court.
MANOJ KUMAR OHRI (JUDGE) JANUARY 24, 2020 na