ગોંડલ ના પોસ્ટ માસ્ટર ની ડીસ્ચાર્જ અરજી રીજેક્ટ કરી નામદાર ગુજરાત હાઈકોર્ટ

ByVakil Saheb

Sep 2, 2022 #Mansiben_Mahendrabhai_Vyas_vs_State_Of_Gujarat_on_29_August_2022

ગુજરાત હાઈકોર્ટ
બેંચ :- નામદાર જસ્ટીસ સમીર દવે સાહેબ
માનસી બેન મહેન્દ્રભાઈ વ્વ્યાસ વી. સ્ટેટ ઓફ ગુજરાત
૨૯-ઓગસ્ટ ૨૦૨૨
ક્રિમીનલ રીવીજન એપ્લીકેશન નંબર :- ૬૨૬/૨૦૨૧
Circulate to All the Judicial Officers.
Issue :- Discharge Application Rejected by Trial court , Confirmed by Hon. Gujarat High court.
Section :- IPC – 409, 464, 468,471,and 114
ડાઉનલોડ ફુલ્લ જજમેન્ટ પી.ડી.એફ. – Mansiben_Mahendrabhai_Vyas_vs_State_Of_Gujarat_on_29_August_2022

ટૂંકમાં હકીકત :- આ કામના અરજદાર મૂળ આરોપી નંબર – ૨ ઉમર ૨૭ વર્ષ એડ હોક તરીકે ગોંડલ તાલુકા માં ભાલોડી ગામે બ્રાંચ પોસ્ટ માસ્તર તરીકે જોડાયેલા હતા. અને ભરતભાઈ રાવલ પોસ્ટમેન તરીકે ૧૯૯૮ થી નોકરી કરતા હતા. આ કામ ની અરજદાર પોતે તારીખ :- ૧૬-૧૨-૨૦૧૬ થી ૨૨-૧૨-૨૦૧૬ સુધી રજા ઉપર રહેલ હતી ત્યારે આરોપી નંબર :- ૧ એ પોસ્ટ ની થાપણો લેવાનું તમામ કામકાજ પોતે કરેલ હતું.જેમાં તેઓ એ નાણા સીવ્કારેલ હતા અને રીસીપ્ટ આપેલ હતી પરંતુ નાણા પોસ્ટ માં જમા કરાવેલ હતા નહી. અને જયારે આ કામ ની અરજદાર પરત આવી ને બધા હિસાબો માંગેલ તો આરોપી નંબર : ૧ એ તે આપેલ નહિ અને ધમકી આપેલ હતી. અને તારીખ :- ૨૦-૦૩-૨૦૧૭ ના રોજ આરોપી નંબર :- ૧ એ કબુલ કરેલ સોગંધ ઉપર કે તેઓ એ આ ઉચાપત કરેલ છે. જેમાં અરજદાર નો વાંક નથી. અને આ કામ ની અરજદાર નિર્દોષ છે. અને ૩ મહીંના બાદ આ કામની અરજદારે આરોપી નંબર :-૧ ઉપર ફરિયાદ દાખલ કરેલ તો પોલીસે આરોપી નંબર ૧ અને આ કામ ની અરજદાર ને પણ આરોઈ નંબર ૨ બનાવી દીધેલ અને તેની વિરુદ્દ પણ એફ.આઈ.આર. દાખલ કરેલ. ત્યાર બાદ તેને એફ.આઈ.આર ક્વોસ કરવા માટે નામદાર હાઇકોર્ટ પહોચ્યા જ્યાં તેઓ ને આગોતરા જામીન મળી ગયેલ હોઈ, ત્યાર બાદ બંને આરોપી વિરુદ્દ ચાર્જ સીટ ફાઈલ થયેલ અને ત્યાર બાદ આ કામ ના અરજદારે ડીસ્ચાર્જ ની અરજી કરેલ છે જે રીજેક્ટ થતા આ કામે ચેલેન્જ થયેલ છે.

11. While perusing the observations made by learned trial court, it clearly appears that while creating false witnesses on 16/06/2016, present applicant-accused no.2 has made R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 misappropriation of Rs.32,000/- on 21/06/2016. Not only that but on 20/08/2016 also, account holder had given an amount of Rs.2,000/- for depositing to accused no.2 applicant but not depositing the said amount, she has committed misappropriation. Learned trial court has further observed that in the statement of one Hardik Kailashbhai, he has clearly stated that his mother and other account holders had given the amount for depositing the same in their respective accounts lying with the post office but applicant accused no.2 had made their false thumb impressions as well as signatures and that Hardik Kailashbhai also made his false signature and thereby accused had committed such kind of misappropriation. It appears that in the statement of Rasikbhai Raghavjibhai Bhalodi and Rakeshbhai Rameshbhai Kataria, they have clearly stated that present applicant had prepared false withdrawal forms on the name of account holders and thereby withdrawn such amount. At the time of dismissing the application for discharge, learned trial court has further observed that while considering all the evidences that in this case not only misappropriation has been committed but while preparing false withdrawal forms, both the accused have committed serious offence also and prima facie evidence has been found against both the accused persons.

12. Thus, while observing as aforesaid, it appears that impugned order does not suffer from any illegality and irregularity and therefore, the present revision application is liable to be dismissed and the same is accordingly dismissed.

Gujarat High Court

Mansiben Mahendrabhai Vyas vs State Of Gujarat on 29 August, 2022

Bench: Samir J. Dave

     R/CR.RA/626/2021                             JUDGMENT DATED: 29/08/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 626 of 2021
                                 With
          CRIMINAL MISC.APPLICATION (FOR STAY) NO. 1 of 2022
           In R/CRIMINAL REVISION APPLICATION NO. 626 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SAMIR J. DAVE
==========================================================

1     Whether Reporters of Local Papers may be allowed Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                  Yes

3     Whether their Lordships wish to see the fair copy No
      of the judgment ?

4     Whether this case involves a substantial question No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                        MANSIBEN MAHENDRABHAI VYAS
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
HIREN J TRIVEDI(8808) for the Applicant(s) No. 1
DELETED for the Respondent(s) No. 2
MS MONALI H. BHATT, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 29/08/2022

                              ORAL JUDGMENT

1. Present criminal revision application is filed by the applicant with a prayer to quash and set aside the order dated 28/06/2021 passed below Exh.25 in Criminal Case no.1468 of R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 2018 by the learned Principal Senior Civil Judge Gondal and further be pleased to discharge the applicant from the offence punishable under Sections 409, 464, 467, 468, 471 and 114 of the Indian Penal Code, 1860.

2. Brief facts of the case are stated as under:

2.1. The applicant is aged 27 years old and appointed on ad- hoc basis as a Branch Post Master in Branch Post Office at Anida Bhalodi village of Gondal Taluka. It is pertinent to note that accused no.1 Bharatbhai Raval has been serving as a Postman in the same branch since 1998. The applicant was on leave from 19/12/2016 to 22/12/2016 and during that period, accused no.1 managed the affairs of the post office branch on her behalf and has misappropriated amounts from the account of the customers/account holders by accepting the amounts of deposit from them, issuing receipts and not depositing the same into their respective accounts. When the applicant returned from leave and demanded details of accounts for the above period, accused no.1 refused to provide the same and threatened her of dire consequences. On 20/03/2017, accused no.1 made a declaration in writing duly stamped and notarized wherein it is categorically admitted that he had committed alleged fraud as he was in need of money and had subsequently deposited back the entire amount of misappropriation. Accused no.1 further declared that applicant is innocent. However, after a period of three months from the date of written complaint of the applicant, respondent no.2 lodged the impugned FIR on R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 22/03/2017 not only against the accused no.1 but arraigning the present applicant as accused no.2 under misconception and on baseless allegations. Thereafter, present applicant approached this Court for quashing of the FIR being filed against her through a Criminal Misc. Application No.8799 of 2017 wherein this Hon’ble Court was pleased to issue notice dated 10/04/2017 staying and directing not to take any coercive actions against the applicant. On 17/07/2017, Criminal Misc. Application No.8799 of 2017 was disposed of by this Court reserving liberty to file anticipatory bail application before the appropriate court. Thereafter, as per the direction of this Hon’ble Court, applicant filed an application for anticipatory bail which was allowed imposing certain conditions. Thereafter, charge sheet was filed on 15/08/2018 for the offences punishable under Sections 409, 464, 467, 468, 471 and 114 of the Indian Penal Code, 1860. Thereafter, the applicant preferred discharge application on 07/01/2021 which came to be rejected by impugned order dated 28/06/2021. Hence, present application is filed by the applicant.

3. Learned advocate for the applicant submitted that from bare reading of the FIR and the charge sheet as well as statements of the witnesses, none of the ingredients of alleged offences are made out against the applicant and the FIR is only afterthought and the same is filed after three months of alleged transaction without proper explanation of such delay of three months. For the same, decision of this Court in the case of Arbindbhai Maganbhai Master vs. State of R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 Gujarat reported in 2015 (1) GLH 149 is also relied upon by the applicant. In fact much prior to the registration of the FIR in respect of alleged irregularities and misappropriation, a written complaint dated 23/12/2016 was made to the head office against her senior colleague i.e. accused no.1. In fact, accused no.1 accepted and confessed his guilt and executed notarized document dated 20/03/2017 and declared that he had done alleged act and the applicant is innocent.

4. Learned advocate for the applicant further submitted that bare perusal of the provisions of Sections 409, 465, 467, 468, 471 and 201 of the Indian Penal Code make it crystal clear that ingredients of these provisions are not satisfied and the same are not attracted against the present applicant and thereby the allegation of forgery made against the applicant is totally baseless and misconceived in as much as accused no.1 has admitted his guilt by way of written document. The applicant has not received any monetary benefits from the alleged transaction. Learned advocate further submitted that respondent no.2 has falsely involved present applicant in the complaint without any base. Learned advocate further submitted that the applicant is young girl and these proceedings will adversely affect her social image and therefore, present application of the applicant may kindly be considered positively and discharge the present applicant.

5. In support of aforesaid submissions, learned advocate for the applicant has relied upon certain decisions of the Hon’ble Supreme Court of India i.e. State of Haryana vs. R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 Bhajanlal reported in 1992 Supp. 1 SCC 335 and submitted that where criminal proceedings are manifestly attended with mala fides and where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge such powers can be exercised. Thus, the present case falls in the said category and also in the other illustrative categories indicated in the aforesaid case and hence present application may kindly be allowed. Learned advocate further relying upon the case of M/s.Eicher Tractor Limited vs. Hariharsingh, JT reported in 2008 (12) SC 661, submitted that in the said case it is held that if continuation of proceedings amounts to abuse of process of law or quashing of proceedings would otherwise serve the ends of justice, the Court would be justified to quash such proceedings.

6. Learned advocate for the applicant submitted that none of the statements incriminate the applicant directly and none of the witnesses have stated that the applicant has embezzled the money from their account and all the statements unequivocally states that they came to know about the incident only when they visited the post office branch when called by the complainant.

7. In support of submissions made on behalf of the applicant, learned advocate for the applicant also relied upon the following decisions of the Hon’ble Apex Court.

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022

1) Sanjay Kumar Rai vs. State of Uttar Pradesh and another, reported in 2021 SCC Online SC 367.

2) Yogesh @ Sachin Jagsih Joshi vs. State of Maharashtra, reported in 2008 (10) SCC 394.

3) Dipakbhai Jagdishchandra Patel vs. State of Gujarat, reported in 2019 (16) SCC 547.

4) Sheila Sebastian vs. R. Jawaharj, reported in 2018 (7) SCC 581.

5) Mahammed Ibrahim vs. State of Bihar, reported in 2009 (8) SCC 751.

6) Bandekar Brothers Pvt. Ltd. And another vs. Prasad Vassudev Keni etc. etc., reported in 2020 SCC Online SC 707.

8. Learned advocate for the applicant, in support of his submissions, has further relied upon the decision of the this Hon’ble Court in the case of Manishaben Gajjugiri Goswani vs. State of Gujarat reported in 2022 (1) GLR 133.

9. Learned APP appearing for the respondent-State opposed the application and submitted that the learned court below has rightly rejected the discharge application of the present applicant considering the evidences produced before it and statements of the witnesses. Learned APP further submitted that on the basis of evidences produced, the court below has observed in the order the way in which the applicant accused has committed such serious offence and therefore, this Court may not exercise discretion in favour of the applicant.

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022

10. Having heard learned advocates appearing for the respective parties and considering the averments made in the application and conclusion arrived at by the learned trial court, first of all we have to consider the grounds of discharge, which have been laid down by the Hon’ble Apex Court in the case of Smt. Om Wati and another vs. State through Delhi Administration and others reported in AIR 2001 SC 1507, holding that the court may discharge accused on following consideration:-

“(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.

(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defense evidence cannot show that the accused committed the crime, then and then along the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage.”

10.1. In case of Saranya vs. Bharathi and another reported in (2021) 8 SCC 583, the Hon’ble Supreme Court, in paragraph nos.10 and 11, observed as under:

“10. Before considering the rival submissions of the parties, few decisions of this Court on the principles which the High Court must keep in mind while exercising the jurisdiction under Section 482 .P.C./at the stage of framing of the charge while considering the R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 discharge application are required to be referred to and considered.

11. In the case of Deepak (supra), to which one of us (Dr. Justice D.Y. Chandrachud) is the author, after considering the other binding decisions of this Court on the point, namely, Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460; State of Rajasthan v. Fatehkaran Mehdu (2017) 3 SCC 198; and Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605, it is observed and held that at the stage of framing of charges, the Court has to consider the material only with a view to find out if there is a ground for “presuming” that the accused had committed the offence. It is observed and held that at that stage, the High Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, take at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. It is further observed and held that at this stage the High Court is not required to appreciate the evidence on record and consider the allegations on merits and to find out on the basis of the evidence recorded the accused chargesheeted or against whom the charge is framed is likely to be convicted or not.”

10.2. In case of Gulam Hassan Baigh vs. Mahammad Maqbool Magrey & Ors., the Hon‘ble Supreme Court, arising out of SLP (Criminal) No.4599 of 2021, decided on 26 th July, 2022, by the Larger Bench of the Hon’ble Apex Court, in paragraph nos.15 to 28, observed as under:

“POSITION OF LAW

15. Section 226 of the CrPC corresponds to subsection (1) of the old Section 286 with verbal changes owing to the abolition of the jury. Section 286 of the 1898 Code reads as under:

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 “286.(1) In a case triable by jury, when the jurors have been in chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor shall open his case by reading from the Indian Penal or other law the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused. (2) The prosecutor shall then examine his witnesses.” Section 226 of the 1973 Code reads thus:

“226. Opening case for prosecution.─ When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused.”

Section 226 of the CrPC permits the prosecution to make the first impression regards a case, one which might be difficult to dispel. In not insisting upon its right under Section 226 of the CrPC, the prosecution would be doing itself a disfavour. If the accused is to contend that the case against him has not been explained owing to the noncompliance with Section 226 of the CrPC, the answer would be that the Section 173(2) of the CrPC report in the case would give a fair idea thereof, and that the stage of framing of charges under Section 228 of the CrPC is reached after crossing the stage of Section 227 of the CrPC, which affords both the prosecution and accused a fair opportunity to put forward their rival contentions.

16. Section 227 of the CrPC reads thus:

“227. Discharge.─ If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022

17. Section 228 of the CrPC reads thus:

“228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid,the Judge is of opinion that there is ground for presuming that the accused has committed an offence which –

(a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

18. The purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet in the course of a trial. [See: decision of a Four Judge Bench of this Court in V.C. Shukla v. State through C.B.I. reported in1980 Supp SCC 92: 1980 SCC (Cri) 695).

19. The case may be a sessions case, a warrant case, or a summons case, the point is that a prima facie case must be made out before a charge can be framed. Basically, there are three pairs of sections in the CrPC. Those are Sections 227 and 228 relating to the sessions trial; Section 239 and 240 relatable to trial of warrant cases, and Sections 245(1) and (2) with respect to trial of summons case.

20. Section 226 of the CrPC, over a period of time has gone, in oblivion. Our understanding of the provision R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 of Section 226 of the CrPC is that before the Court proceeds to frame the charge against the accused, the Public Prosecutor owes a duty to give a fair idea to the Court as regards the case of the prosecution.

21. This Court in the case of Union of India v. Prafulla Kumar Samal and another, (1979) 3 SCC 4, considered the scope of enquiry a judge is required to make while considering the question of framing of charges. After an exhaustive survey of the case law on the point, this Court, in paragraph 10 of the judgment, laid down the following principles :

“(1) That the Judge while considering the question of framing the charges under section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 and cons of the matter and weigh the evidence as if he was conducting a trial.”

22. There are several other judgments of this Court delineating the scope of Court’s powers in respect of the framing of charges in a criminal case, one of those being Dipakbhai Jagdishchandra Patel V. State of Gujarat, (2019) 16 SCC 547, wherein the law relating to the framing of charge and discharge is discussed elaborately in paragraphs 15 and 23 resply and the same are reproduced as under:

“15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows:

“4…..Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code.

At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial…. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.”

“23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.”

23. In Sajjan Kumar v. CBI [(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court had an occasion to consider the scope of Sections 227 and 228 CrPC. The principles which emerged there from have been taken note of in para 21 as under: (SCC pp. 376-77) “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 dis close 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 R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 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 dis charge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.”

24. The exposition of law on the subject has been further considered by this Court in State v. S. Selvi, (2018) 13 SCC 455 : (2018) 3 SCC (Cri) 710, followed in Vikram Johar v. State of Uttar Pradesh, (2019) 14 SCC 207 : 2019 SCC OnLine SC 609 : (2019) 6 Scale 794.

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022

25. In the case of Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148, this Court, to which one of us (A.M. Khanwilkar, J.) was a party, in so many words has expressed that the trial court is not expected or supposed to hold a mini trial for the purpose of marshalling the evidence on record. We quote the relevant observations as under:

“18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases(which is akin to Section 239 CrPC pertaining to warrant cases) 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; where the material placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, 3 2018(13) SCC 455 4 2019(6) SCALE 794 the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not supposed to hold a mini trial by marshalling the evidence on record.” (emphasis supplied)

26. In the case of State of Karnataka v. M.R. Hiremath, reported in (2019) 7 SCC 515, this Court held as under:

“25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) “29. … At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See : Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

28. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, this Court observed in paragraph 30 that the Legislature in its wisdom has used the expression “there is ground for presuming that the accused has committed an offence”. There is an inbuilt element of presumption. It referred to its judgement rendered in the case of State of Maharashtra v. Som Nath Thapa and others, (1996) 4 SCC 659, and to the meaning of the word “presume”, placing reliance upon Blacks’ Law Dictionary, where it was defined to mean “to believe or accept upon probable evidence”; “to take as true until evidence to the contrary is forthcoming”. In other words, the truth of the matter has to come out when the prosecution evidence is led, the witnesses are cross – examined by the defence, incriminating material and evidences put to the accused in terms of Section 313 of the Code, and then the accused is provided an opportunity to lead defence, if any. It is only upon completion of such steps that the trial concludes with the Court forming its final opinion and delivering its judgement…..” (emphasis supplied)”

10.3. In case of Manendra Prasad Tiwari, vs. Amit Kumar Tiwari & another, in Criminal Appeal No.1210 of 2022, decided on 12th August, 2022 by the Division Bench of the Hon’ble Apex Court, in paragraph nos.21 to 27, observed as under:

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 “21. The law is well settled that although it is open to a High Court entertaining a petition under Section 482 of the CrPC or a revision application under Section 397 of the CrPC to quash the charges framed by the trial court, yet the same cannot be done by weighing the correctness or sufficiency of the evidence. In a case praying for quashing of the charge, the principle to be adopted by the High Court should be that if the entire evidence produced by the prosecution is to be believed, would it constitute an offence or not. The truthfulness, the sufficiency and acceptability of the material produced at the time of framing of a charge can be done only at the stage of trial. To put it more succinctly, at the stage of charge the Court is to examine the materials only with a view to be satisfied that prima facie case of commission of offence alleged has been made out against the accused person. It is also well settled that when the petition is filed by the accused under Section 482 CrPC or a revision Petition under Section 397 rad with Section 401 of the CrPC seeking for the quashing of charge framed against him, the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once that trial court has framed a charge against an accused the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be placed on record. Any attempt by an accused for quashing for a charge before the entire probabilities evidence has come on record should not be entert10 sans exceptional cases. (see State of Delhi v. Gyan Devi, (2000) 8 SCC 239).

22. The scope of interfere and exercise of jurisdiction under Section 397 of CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage,w hen charge had been framed, is also well settled. At the stage of framing of charge, the court is concerned not with the proof of all allegation rather it has to focus on the material and form an opinion whether there is strong R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage the final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of Code of Criminal Procedure.

23. Section 397 CrPC vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.

24. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander, (2012) 9 SCC 460, where the scope of Section 397 CrPC has been succinctly considered and explained para 12 and 13 resply are as follows:

“12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022

13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the Cr.P.C.

25. The Court in para-27 has recorded its conclusion and laid down the principles to be considered for the exercise of jurisdiction under Section 397 particularly in the context of quashing of charge framed under Section 228 CrPC. Paras 27, 27(1) (2) (3) (9), (12) resply are extracted as follows:

“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, R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 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.

xxx 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.

xxx 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.

26. This Court in the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi), reported in R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 (2009) 16 SCC 605, observed in para 25 as under:

“25. It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for “presuming” that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See: Niranjan Singh Karam Singh Punjabi & Ors. Vs. Jitendra Bhimraj Bijja & Ors5).

27. In State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, a three-Judge Bench of ths Court explained the meaning of the word “presume”. Referring to the dictionary meanings of the said word, the Court observed thus:

“32. ….. 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.”

R/CR.RA/626/2021 JUDGMENT DATED: 29/08/2022 Rule is discharged. No order as to costs.

13. In view of aforesaid order passed in present Criminal Revision Application, no order is required to be passed in aforesaid Criminal Misc. Application (for stay) and the same stands disposed of accordingly.

14. Office is directed to circulate this judgment to all the Judicial Officers of the State of Gujarat.

(SAMIR J. DAVE,J) ILA