Ramdeo And Another v. The State Of Rajasthan

M.R. Calla, J.

1. This petition Under Section 482 Cr.P.C. has been filed against the order passed by the Additional Sessions Judge No. 1, Alwar, Camp Laxmangarh, framing charges against the petitioners for offences Under Sections 147 323 and 302/149 I.P.C. in Sessions Case No. 77/89. The order dated 18.5.1992 framing charges against the petitioners is reproduced as under:

18-5-92 ,fMkuy ih- ih- mifLFkr A eqyfteku cnuflag] ;knjke] fHkDdh] jkenso] izHkqn;ky tekur mifLFkr Aeqyfteku cnuflag] ;knjke] fHkDdh dks /kkjk 302] 147] 149@302 o 323 vkbZ-ih-lh- dk vkjksi fojfpr fd;k tkdj lquk;k x;k ftUgksus vijk/k vLohdkj fd;k vkSj vUoh{kk pkgh A eqfYteku jkenso] izHkqn;ky ij /kkjk 347] 302@149] 323 vkbZ-ih-lh- dk vkjski lquk;k o le>k;k x;k vUoh{kk pkgh AxokgkuA Vw 4 t;sZ tekuoh okjUV 100@& ls ryc gks A i=koyh okLrs lk{; es fnukad 24-7-92 dks isk gks A

2. On 22nd June, 1989, an FIR No. 74/89 was registered at Police Station Kathumar, on the basis of a written report filed by the complainant Ramdayal Sharma. The complainant has alleged in the report that there was a physical fight between him on the one hand and Yadram, Bhikki and Badan Singh, on the other hand, with regard to demolition of common boundary wall, for the purpose of storage of the local manure. When Ramdayal, the complainant, raised an alarm, his younger brother Amarchand came to his rescue. Ramlal, Shyam Lal, Prabhudayal s/o Puran, Bhamboli s/o Mayaram, Birdiram s/o Dharam Singh and Phoolchand s/o Dharam Singh also came to pacify the matter. These persons along with Amarchand were sitting in that very room where all those persons were earlier sitting. After about an hour, when Amarchand went out to case himself, Badan Singh gave a lathi blow on the head of Amar Chand as a result of which Amar Chand fell down; Bhikki and Yadram gave lathi blows on his abdomen and chest and when other persons came to rescue, Badan Singh went to the roof of his house with the gun. Ram Dayal, the complainant, has further stated that on the roof of the house of Badan Singh, certain other persons including the present two accused petitioners i.e. Ramdeo s/o Nannu and Prabhu Dayal s/o Chirani were also there and were throwing stones from the roof and did not allow Amarchand to be taken away therefrom. After about half an hour, on the request of Ramlal, Shyamlal, Prabhudayal, Bhamboli, D Chiddi Ram and Phoolchand, Amarchand was allowed to be taken to Hospital at Nagar, in a tractor. Thereafter, Amar Chand was taken to Alwar where he expired. After the investigation, a challan was filed and on the basis of the challan papers, learned Additional Sessions Judge No. 1, Alwar, who was to hear arguments on the charge, on 18.5.1992 passed the order, which has already been reproduced above. Charges Under Section 302/147 149/302 and 323 I.P.C. were framed against Badan, Singh, Yadram and Bhikki whereas against the present petitioners Ramdeo and Prabhu Dayal charges Under Section 147 302/149 and 323 I.P.C. were framed. The charge sheet as has been actually framed, against the present accused petitioners Ramdeo and Prabhu Dayal, is in the same terms. The charges as have been framed against one of the two accused petitioners Ramdeo are reproduced as under:

eS ,l-lh- xqIrk] vkj-,p-ts-] vij ftyk lsku U;k;k/khk ua0 1] vyoj ,rn~ }kjk vki jkenso firk dk uke uuw tkfr czk0 fuoklh eFkw:Msgk ij fuEu vkjksi yxkrk gWw %&

1-/kkjk vkius fnukad 21-6-89 dks nksigj 2&3 cts ds yxHkx xzke ekStk eFkq:gsM+k es vejpUn dh

147 gR;k djus ds lkekU; mn~ns; ls e; nhxj eqyfteku uktk;r laxBu cuk;k rFkk lkekU;

Hkk-n-la- mn~ns; dh iwfrZ es fgalk dkfjr la0 dh A vkidk d`R; dh /kkjk 147 ds v/khu

n.Muh; gS tks fd esjs izlaKku es gSA

2-/kkjk vkius fnukad 21-6-89 dks nksigj 2&3 cts vejpUn dh tkucw>dj gR;k djus ds lkekU;

302] mn~ns; ls e; nhxj eqyfteku lkekU; mn~ns; dh iwfrZ es vejpUn dks ykBh ls ekjdj

149 vejpUn dh gR;k dj nh A vidk ;g d`R; Hkk-n-la- dh /kkjk 302 lifBr /kkjk 149 ds

Hkk-n-la- v/khu n.M+uh; gS tks fd esjs izlaKku es gSA

3-/kkjk vkius mijksDr fnol] le; o LFkku ij tkucw>dj LosPNk ls jkeyky o jken;ky dks ekjihV

323 dj lk/kkj.k pksVs dkfjr dh A vkidk ;g d`R; Hkk-n-la- dh /kkjk 323 ds v/khu n.M+uh; gS

Hkk-n-la- tks fd esjs izLakKku es gSA

vkSj eS ,rn~ }kjk funsZk nsrk gwW fd vkidks mDr U;k;ky; }kjk mDr vkjksi ij ijhf{kr fd;k tk; A

g0@&

,l- lh- xqIrk

3. Shri S.R. Bajwa, learned Counsel for the petitioners, has submitted that the trial court, without application of mind, has passed the order dated 18.5.1992 and framed charges against the accused petitioners. The order dated 18.5.1992 does not show that the trial court had considered the question as to whether the ingredients of the offences for which the accused petitioners were to be charged, were in existence, as per record, on not. The trial court has not even mentioned in the order dated 18th May, 1992 that it prima facie found the charges mentioned therein against the accused petitioners as per the material available on the record. Shri Bajwa, learned Counsel for the petitioners, has further submitted that the trial court may not have passed a detailed order in this regard giving elaborate reasons but such orders should have been passed to at least show that there was actual application of judicial mind by the court with objective approach before passing such orders, and has referred to the provisions of Sections 227 and 228 in Chapter XVIII Cr.P.C. i.e. Trial before the court of Sessions. Sections 227 and 228 Cr.P.C. are reproduced as under:

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 doing so.

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 Sessions, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate and thereupon the Chief Judicial 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.

4. At the very outset, Section 227 Cr.P.C. mentions that upon consideration of the record of the case and the documents submitted therewith and after hearing submissions of the accused and the prosecution in this behalf... Thus, it is clear that the court has to consider the matter at this stage and such consideration must be a consideration of the record and the documents. If at this stage, judicial mind is not applied objectively, the person who is charged, has to face the agony of trial and therefore, the court framing charge has to follow the provisions of Section 227 Cr.P.C. May be that the court is not expected to give detailed reasoning at this stage but the order by itself must inspire confidence that the record of the case and the documents have been duly considered by the trial court because this consideration may either lead to the discharge at the stage of framing of the charge. As has been provided in Section 228 Cr.P.C. without such consideration, an opinion cannot be formed that there are grounds for presuming that the accused has committed the offence. Therefore, consideration of the relevant record of the case and the documents is a sine qua not for the purpose of framing of the charge, If the order does not show that available record of the case and the documents were considered, as required by Section 227 Cr.P.C. non compliance of this section is apparent and the trial cannot be allowed to proceed further on the basis of the charge so framed, without following the procedure contained in Section 227 and 228 Cr.P.C.

5. Shri S.R. Yadav, learned Additional Public Prosecutor, has submitted that in the instant case, the order dated 18.5.1992 itself makes it clear that the trial court has framed charges after due application of mind in as much as the court has made a distinction between the charges framed against Badan Singh, Yad Ram and Bhikki on the one hand and Ramdeo and Prabhu Dayal, on the other side. The charge framed against Yadram, Badan Singh and Bhikki included the offence Under Section 302 I.P.C. whereas the offence Under Section 302 I.P.C. has not been charged against the present petitioners Ramdeo and Prabhu Dayal. Such as order could not have been drawn without application of mind and therefore, Shri Yadav, learned Addl. PP submits that the trial court may not have mentioned in the order dated 18.5.1992 that it prima facie found the existence of the ingredients of the offences or that it had considered the entire record of the case and the offence Under Section 302 I.P.C. against one set of the accused persons and the exclusion of the same against the present petitioners, could not have been there unless there was an actual application of judicial mind. Shri S.R. Bajwa, learned Counsel for the petitioners has invited my attention to the charges framed, which have been reproduced in the earlier part of this order and has made a pointed reference to item No. 2 contained in the charge in which it has been mentioned that the present accused petitioners had given lathi blow to Amar Chand causing his death. Shri S.R. Bajwa, learned Counsel for the petitioners has further submitted that true it is that the trial court has not framed the charge Under Section 302 I.P.C. against Ramdeo and Prabhudayal but the charge as has been framed against the present petitioners is not at all compatible with the order dated 18.5.1992 inasmuch as even as per the case of the prosecution itself, there is no allegation that Ramdeo and Prabhu Dayal had caused any lathi blow on the head of Amar Chand in order to cause his death. Such allegations were made against Badan Singh, Bhikki and Yadram and not against accused Ramdeo and Prabhu Dayal and this clearly shows that the charge has been framed in an absolutely mechanical manner. He has further submitted that all the five accused persons have been subjected to the same charge containing the same allegations and words, in the same language. Shri Bajwa, learned Counsel for the petitioners has also placed reliance on Niranjan Singh v. Jitendra : 1990CriLJ1869 wherein the Supreme Court has considered the scope of Sections 227 and 228 Cr.P.C. and in para 6, the import of word consideration itself has been considered. According to the Supreme Court, it is obvious that since the trial court is at the stage of deciding whether or not, there exists sufficient grounds for framing the charge, the enquiry must necessarily be limited to decide as to whether the facts emerging from the record and documents constitute offence (s) with which the accused is charged. Supreme Court has further said in para 6 of Niranjan Singhs case (supra) that at that stage, the trial court may sift the evidence for that limited purpose hut the court is not required to marshal the evidence with a view to separate grain from the chaff but it is certainly called upon to consider whether there is sufficient ground to frame the charge and for this limited purpose, the court must weigh the material on record as well as the documents relied on by the prosecution.

6. Having gone through the aforesaid decision of the Supreme Court in Nirajan Singhs case (supra), the submissions made before me on behalf of both the sides and having gone through the order dated 18.5.92 passed by the trial court and the charge as has been framed against Ramdeo and Prabhu Dayal and the record which is available with me, I am of the opinion that in the instant case, the trial court has not discharged its duty of evaluating the material to find out if the facts emerging therefrom taken at their face value, establish the ingredients constituting the offences or not. This failure on the part of the trial court has resulted into framing of the chargeh which is not at all compatible with the trial courts own order dated 18.5.92, and I am of the opinion that it will not be in the interest either of the accused petitioners or the prosecution to allow the trial court to proceed on the basis of the charges as have been framed against the petitioners Ramdeo and Prabhu Dayal. According to the provisions of Sections 227 and 228 Cr.P.C. evaluation of the material and documents on record, with a view to find out as to whether the facts emerging therefrom, taken at their face value, disclose the existence of ingredients of the offences or not, is a condition precedent and pre-requisite. If this condition precedent is not followed, for the purpose of consideration of the question on the point of framing of charge, the charge framed cannot be sustained and therefore, in the facts of this case, I find that there is total non compliance of Sections 227 and 228 Cr.P.C. so far as the present two accused petitioners Ramdeo and Prabhu Dayal are concerned and the matter deserves to be remanded back to the trial court.

7. Accordingly, I set aside the order dated 18th May, 1992 and the charges framed in pursuance thereof qua the present two petitioners i.e. Ramdeo and Prabhu Dayal and direct the trial court to consider the entire material, documents and the record of the case and then pass a proper order in accordance with the provisions of Section 227 and 228 Cr.P.C. on the question of framing of the charges against the present petitioners and the proceed further in accordance with law. The trial court may decide the question with regard to the framing of the charges as early as possible but in no case, later than the period of one month from the date the record is received. In doing so, the trial Court will not be influenced by any observations made in this order on the merits as to whether the charge is made out or not.

8. This petition Under Section 482 Cr.P.C. succeeds and is decided accordingly. The record of the trial court which has been summoned, may be returned forthwith.