Crl.Petn./20/2024 of POIMI SANA Vs STATE OF MEGHALAYA on 30 August 2024

J U D G M E N T

1. An FIR dated 08.11.2018 was lodged by S.I. A. Iawphniawbefore the Officer-in-Charge, Khliehriat Police Station, East Jaintia HillsDistrict, alleging that there was a case of robbery and attempted murderupon Smti. Agnes Kharshiing at Tuber Sohshrieh in the East Jaintia HillsDistrict at about 1:30 pm on that day.

2. Accordingly, the FIR was registered as Khliehriat P.S. CaseNo. 195(11) 2018 under Section 307/392/34 IPC and investigation waslaunched. In course of investigation, a number of persons weresuspected to be involved in the incident and many of them have beenimplicated as accused persons in the case. The Investigating Officer,upon investigation being completed, has submitted the charge sheetfinding a prima facie case being made out against the named accusedtherein under Section 307/392/326/34 IPC, the petitioner herein beingone of such accused persons.

3. Since the offences involved are sessions triable, the case wascommitted to the court of the Sessions Judge for trial. The case beingrenumbered as Session Case No. 21 of 2023, summons was issued to allthe accused persons named in the charge sheet.

4. The petitioner having received the summons as well as thecopy of the charge sheet had perused the same and finding that there is no material evidence against him, he had filed an application underSection 227 Cr.P.C. with a prayer for discharge from the case. Theapplication was registered as Crl. Misc Application No. 26 of 2023.

5. The learned Sessions Judge after hearing the parties had thenpassed the order dated 05.02.2024 rejecting the prayer of the petitioner.Being aggrieved by such order, the petitioner has now come before thisCourt with this instant criminal petition.

6. Mr. S. Panthi, learned counsel for the petitioner has submittedthat the impugned order was passed without careful examination of thefacts and circumstances of the case and the materials on record whereinis found no evidence as regard the complicity of the petitioner/accusedperson to warrant charges to be framed against him.

7. The learned counsel has also submitted that from the chargesheet what could be seen is that from the statement of the prosecutionwitnesses recorded under Section 161 and 164 Cr.P.C no witnesses havenamed the petitioner as one of the persons involved in the allegedincident.

8. Even the reliance of the learned Trial Judge on the Call DetailRecords (CDR) collected from the mobile handset of the accusedpersons including that of the petitioner, there is no record found from thesaid mobile handset of the petitioner to implicate him or even to linkhim to the alleged incident. However, the learned Trial Judge withoutanalysing the relevant evidence as far as the said CDR is concerned, without any linkage, has by a blanket order implicated the petitioner inthe case and his prayer for discharge was also rejected along with that ofother accused persons in the case.

9. It is the submission of the learned counsel that the learnedTrial Judge ought to have exercise his power under Section 227 of theCr.P.C to discharge the accused person on the ground that firstly, there isno evidence or even suspicion as far as the involvement of the petitionerin the case is concerned and secondly, even if there is suspicion but withno grave suspicion the court ought to have discharged thepetitioner/accused person.

10. In support of his contention, the learned counsel has cited thefollowing judgments:

i.Sajjan Kumar v. Central Bureau of Investigation, (2010) 9SCC 368, para 17, 18 and 21;SCC 368, para 17, 18 and 21;

ii.State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp(1) SCC 335, para 102;(1) SCC 335, para 102;

iii.A.M. Mohan v. State represented by SHO & Anr., 2024SCC Online SC 339, para 21 and 24.SCC Online SC 339, para 21 and 24.

11. Per contra, Mr. H. Kharmih, learned Addl. P.P appearing forthe State respondent while resisting the argument advanced by thelearned counsel for the petitioner has submitted that from the facts andcircumstances of the case and the materials on record what is apparent is that on receipt of the report of the incident regarding the attempt tomurder and the severe assault on the person of the victim, Smti. AgnesKharshiing, the Officer-in-Charge, Khliehriat P.S has registered a casebeing Khliehriat. P.S. Case No. 195(11)2018 under Section 307/392/34IPC and investigation was launched.

12. In course of investigation the Investigating Officer hadgathered all relevant evidence and had also examined a number ofpersons on the basis of which those persons who are suspected to beinvolved in the incident were arrested and charge sheet has eventuallybeen submitted implicating as many as 26(twenty-six) persons asaccused. As far as the petitioner herein is concerned, the I/O on comingto learn of his involvement in the incident, attempt was made to arresthim, however, in spite of the diligent efforts of the I/O it appears that thepetitioner had absconded from his known place of residence. The I/Ofollowing due procedure has moved the concerned court and afterissuance of warrant of arrest not being effective, the petitioner waseventually declared as an absconder and proclamation order underSection 82 Cr.P.C was issued against the petitioner. The action of thepetitioner can only lead to one conclusion, that is, his involvement in thecase and as such, the learned Trial Judge by passing the impugned orderdirecting for framing of charge against him is justified.

13. The learned Addl. P.P has however conceded that there is nodirect evidence in the form of statement by any of the witnesses toimplicate the petitioner in the case however, on the basis of circumstantial evidence and the fact that he chose to evade theinvestigation process, the decision to reject the application for dischargefiled by him and others is well founded.

14. It is finally submitted that this is a case where the facts andcircumstances would be sufficient enough to allow the trial court tocontinue with the proceedings and for appropriate charges to be framedagainst the petitioner and the other accused persons involved.

15. This Court taking into account the contents of the applicationunder Section 482 Cr.P.C and also the contention and submission madeby the respective counsels for the parties and also on perusal of the copyof the charge sheet annexed with the petition, is made to understand thaton the basis of the said FIR dated 08.11.2018 lodged by S.I A.Iawphniaw in connection with a case of assault and attempt to murder,Smti. Agnes Kharshiing being the victim of the same, whereupon apolice case was registered and investigation conducted, the I/O havingfound that there exist prima facie case involving the petitioner hereinand others, the trial court had eventually proceeded for consideration ofcharge but was made to decide on an application under Section 227Cr.P.C filed by the petitioner herein and others seeking their dischargefrom the liabilities of the case.

16. The learned Trial Judge on consideration of the saidapplication seeking discharge registered as Crl. Misc Application No. 26of 2023, after hearing the parties had passed the impugned order dated05.02.2024 rejecting the said application. Hence this petition.

17. Before proceeding further, it would be but appropriate to lookat the provision of Section 227 Cr.P.C which reads as follows:

“227.Discharge.–If, upon consideration of the record of thecase and the documents submitted therewith, and after hearingthe submissions of the accused and the prosecution in thisbehalf, the Judge considers that there is not sufficient groundfor proceeding against the accused, he shall discharge theaccused and record his reasons for so doing.”

18. In course of a criminal trial one of the most important stagesthat a trial court has to undertake is the question of framing of charge. Itis incumbent upon the trial court to consider this stage very seriously asit will have a far-reaching impact on the fate of the prosecution’s case aswell as on the right of the accused person who may have to go through along and arduous trial but may eventually be found innocent simply forthe fact that charges which are unfounded have been foisted upon suchaccused person. Therefore, the law provides that the trial court shallconsider all the materials on record, to sift the same with the intention tofind out whether there are actually reliable evidence or no evidence at allto proceed against the accused person.

19. In this respect, the Apex Court in a catena of judgment hasspelled out a number of principles which ought to be considered by theTrial Judge in accordance with the provision of Section 227 Cr.P.C.

20. Such principles as laid down by the Hon’ble Supreme Court isfound in a number of judgments, even one such judgment dating back tothe year 1979 where in the case of Union of India v. Prafulla Kumar Samal & Anr. reported in (1979) 3 SCC 4, at para 10 is found thefollowing:

“10. Thus, on a consideration of the authorities mentionedabove, the following principles emerge:

(1) That the Judge while considering the question offraming the charges under Section 227 of the Code hasthe undoubted power to sift and weigh the evidence forthe limited purpose of finding out whether or not a primafacie case against the accused has been made out.

(2) Where the materials placed before the Court disclosegrave suspicion against the accused which has not beenproperly explained the Court will be fully justified inframing a charge and proceeding with the trial.

(3) The test to determine a prima facie case wouldnaturally depend upon the facts of each case and it isdifficult to lay down a rule of universal application. Byand large however if two views are equally possible andthe Judge is satisfied that the evidence produced beforehim while giving rise to some suspicion but not gravesuspicion against the accused, he will be fully within hisright to discharge the accused.

(4) That in exercising his jurisdiction under Section 227of the Code the Judge which under the present Code is asenior and experienced court cannot act merely as a postoffice or a mouthpiece of the prosecution, but has toconsider the broad probabilities of the case, the totaleffect of the evidence and the documents producedbefore the Court, any basic infirmities appearing in thecase and so on. This however does not mean that thejudge should make a roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting a trial.”

21. In the case of Sajjan Kumar (supra) relied upon by the petitioner at para 17, the Hon’ble Supreme Court while discussing onthe scope of Section 227 Cr.P.C has reiterated its decision made in thecase of Prafulla Kumar Samal (supra).

22. In the light of the settled position of law as has been indicatedhereinabove, coming to the facts and circumstances of the case of theparties herein, the learned Addl. P.P has candidly admitted that there isno direct evidence of the involvement of the petitioner as far as theincident of assault and attempt to murder upon the said victim isconcerned, no witnesses examined by the I/O have named the petitioneras one of the perpetrators of the offence. However, the only allegationagainst the petitioner is based on the fact that he had absconded andrefused to cooperate with the investigation till such time he voluntarilytook part in the proceedings after obtaining bail protection, his actionscan only lead to one conclusion that he is primarily involved in the saidincident.

23. Even on perusal of the impugned order nothing has beenpointed out as far as the direct involvement of the petitioner isconcerned. The only reference made is that the petitioner had at somepoint of time absconded and failed to cooperate with the investigation.The learned Trial Judge has also rejected the application for dischargeon the premise that “On careful analysis of the CDR, it is seen thataccused persons herein were somewhat present in and around the P.O atthe alleged time of the incident.”. Again, from the charge sheet what isnoticed is the recording of the I/O as far as “Data of CDR, CAF &

Tower Location/Dump and their analysis” wherein is listed the names of16(sixteen) accused persons with their mobile number, particulars etc.,but there is no noting of the name and mobile number of the petitionerherein.

24. In view of the above observation, this Court is of theconsidered opinion that the learned Trial Judge has failed to look intothe specific evidence as regard the involvement of the petitioner hereinand has simply passed the impugned order clubbing the name of thepetitioner along with the other accused persons.

25. This application has been preferred under Section 482 Cr.P.Con a two-prong prayer, that is, one for setting aside the impugned orderdated 05.02.2024 and the other for quashing of the related proceedingsas far as the petitioner herein is concerned.

26. This Court being convinced that the Trial Judge hascommitted manifest error in rejection of the application for dischargevis-à-vis the petitioner herein, the only conclusion would be that nocharges can be framed against the petitioner, consequently, it stands toreason that if charges cannot be framed he is not to stand trial andaccordingly the proceedings against him are liable to be quashed, for innot doing so, there would have occurred an abuse of the process of thecourt which would then attract the provision of Section 482 Cr.P.C.

27. In the final analysis, this Court is convinced that the petitionerhas made out a case for setting aside and quashing of the impugned Powered by TCPDF (www.tcpdf.org)

order dated 05.02.2024 and also for dropping of the proceedings only inregard to his alleged involvement thereof which is accordingly done soherein.

28. The petitioner is henceforth discharged from all the liabilitiesin the case and similarly the bail bond executed also stands discharged.

29. Petition disposed of. No costs.

Judge