Ramaiyya Chauhan v. State Of Chhattisgarh

HIGH COURT OF CHHATTISGARH, BILASPUR CRMP No. 231 of 2017

1. Ramaiyya Chauhan S/o Radheshyam Chauhan Aged About 30 Years (Not Mentioned In The Order Sheet),

2. Lakhan Chouhan S/o Radheshyam Chouhan Aged About 19 Years (Not Mentioned In The Order Sheet), Both are R/o Saw Mill, Azad Chowk, Chowki Rampur, Police Station Kotwali, Korba, District Korba, Chhattisgarh, ---- Petitioners

Versus

1. State Of Chhattisgarh Through The Station House Officer, Chowki Rampur, Police Station Kotwali, Korba, District Korba, Chhattisgarh.

2. Jagbandhu Chouhan S/o Late Pannalal Chouhand Aged About 40 Years Occupation Mistri, R/o Saw Mill, Azad Chowk, Chowki Rampur, Police Station Kotwali, Korba, District Korba Chhattisgarh.

---- Respondents ________________________________________________________ For petitioners - Shri Govind Ram Miri and Shri Basant Kaiwartya, Advocates.

For Respondent/State - Shri Dilman Rati Minj, Dy. G.A. Hon'ble Shri Justice Goutam Bhaduri Order 27/02/2017 1.

Heard.

2.

This petition is against the order dated 29/12/2016 whereby the trial court has framed charges against the petitioners under Section 452, 323 and in alternate Section 323/34 and under Section 306 of IPC.

3.

The charge sheet emanates from the FIR made on 7/03/2015 by one Jagbandu Chouhan purports that on 6/03/2015 during the festival of Holi his son deceased Kanta Chouhan had some altercation with the petitioners and other co-accused and thereafter the petitioners entered

into the house of the complainant and assaulted the deceased by way of hand and fist which was intervened by one Golu, Mohan, Rakesh and Fuleshwari. Subsequently, when the petitioners went outside, the deceased entered into the room locked himself and committed suicide. Thereby, offence was committed including abatement to commit suicide.

4.

Learned counsel for the petitioners would submit that initially the offence was registered under Section 452, 323 and 34 of IPC, however during framing of charge, Section 306 IPC was also added. It is submitted that there is no iota of evidence against the petitioners of abetment and it was only a simple case of free fight, therefore charges framed under Section 306 IPC would not be made out. 5.

Per contra, learned State counsel opposes the same. 6.

Perused the charge sheet filed along with the petition as also statement of Jagbandu Chouhan father of the deceased, Mohanlal Druv, Prabhat Kumar, Ku. Bhuneshwari Chouhan sister of the deceased, Mehtarin Chouhan and Manisha Manikpuri. On reading of the statement would conjointly show that after the deceased was assaulted and humiliated and statement shows that deceased was abated and tortured. Thereafter, the deceased got himself locked into the room and committed suicide. Therefore, it would point out that immediately after such assault coupled with humiliation and torture deceased committed suicide and statement of the witnesses would show the fact of abetment by all the accused were made. 7.

The Supreme Court in a case law reported in AIR 2013 SC 52 - Shoraj Singh Ahlawat Vs. State of U.P has observed that the Court

trying the case can direct discharge only for the reasons to be recorded by it and only if it considers that the charges against the accused to be groundless. Section 240 of Cr.P.C. provides for framing of a charge which reads as under:

"240. Framing of charge.- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused."

8.

Reading of Section 240 shows that if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary or the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of section 239 Cr.P.C., and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra Vs. state (NCT of Delhi) (2008) 2 SCC 561 : (AIR 2008 SC (Supp) 204 : 2008 AIR SCW 96).

9.

Hon'ble the Supreme Court has further observed that it is well settled that at the stage of framing of charge, the defence of accused could not be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination

thereof at that stage which is against the criminal jurisprudence. Therefore, taking into account the above position of law, the argument which has been advanced by the learned counsel for the applicants, cannot be accepted as prima facie the Court has to only see whether there is ground to presume that the accused had committed the offence or not ?

10.

Therefore, reading the contents of FIR and the documents would go to show that strong suspicion about existence of facts constituting offence is made out at this stage, when the evidence is not adduced. 11.

Further the Supreme Court in a case law reported in M/s. Zandu Pharmaceutical Works Ltd. And others v. Md. Sharaful Haque and others (AIR 2005 SC 9), held thus :- "8.

Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent

powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact.

When a complaint is sought to be quashed, it is permissible to look in to the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

12.

Applying the aforesaid principles in this case after going through the charge sheet and the documents annexed thereto , at this stage, the defence adduced by the petitioners cannot be

accepted as gospel truth. The same has to be decided on the floor of the Court during evidence while they are tested by virtue of examination and cross examination.

13.

Consequently, the petition is without any merit and it is dismissed.

Sd/- (Goutam Bhaduri) JUDGE gouri