2024:MLHC:792
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl. Petn. No. 20 of 2024
Date of Decision: 30.08.2024
Shri. Poimi Sana
S/o Smti Shar Sana,
R/o Tuber Kmai Shnong,
East Jaintia Hills District,
Meghalaya
…..Petitioner
-versus-
State of Meghalaya,
Represented by the Home Police Department,
Government of Meghalaya
…..Respondent
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Panthi, Adv.
For the Respondent(s) : Mr. H. Kharmih, Addl. P.P.
Mr. S.A. Sheikh, GA
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
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in press: Yes/No
J U D G M E N T
1. An FIR dated 08.11.2018 was lodged by S.I. A. Iawphniaw
before the Officer-in-Charge, Khliehriat Police Station, East Jaintia Hills
District, alleging that there was a case of robbery and attempted murder
upon Smti. Agnes Kharshiing at Tuber Sohshrieh in the East Jaintia Hills
District at about 1:30 pm on that day.
2. Accordingly, the FIR was registered as Khliehriat P.S. Case
No. 195(11) 2018 under Section 307/392/34 IPC and investigation was
launched. In course of investigation, a number of persons were
suspected to be involved in the incident and many of them have been
implicated as accused persons in the case. The Investigating Officer,
upon investigation being completed, has submitted the charge sheet
finding a prima facie case being made out against the named accused
therein under Section 307/392/326/34 IPC, the petitioner herein being
one of such accused persons.
3. Since the offences involved are sessions triable, the case was
committed to the court of the Sessions Judge for trial. The case being
renumbered as Session Case No. 21 of 2023, summons was issued to all
the accused persons named in the charge sheet.
4. The petitioner having received the summons as well as the
copy of the charge sheet had perused the same and finding that there is
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no material evidence against him, he had filed an application under
Section 227 Cr.P.C. with a prayer for discharge from the case. The
application was registered as Crl. Misc Application No. 26 of 2023.
5. The learned Sessions Judge after hearing the parties had then
passed the order dated 05.02.2024 rejecting the prayer of the petitioner.
Being aggrieved by such order, the petitioner has now come before this
Court with this instant criminal petition.
6. Mr. S. Panthi, learned counsel for the petitioner has submitted
that the impugned order was passed without careful examination of the
facts and circumstances of the case and the materials on record wherein
is found no evidence as regard the complicity of the petitioner/accused
person to warrant charges to be framed against him.
7. The learned counsel has also submitted that from the charge
sheet what could be seen is that from the statement of the prosecution
witnesses recorded under Section 161 and 164 Cr.P.C no witnesses have
named the petitioner as one of the persons involved in the alleged
incident.
8. Even the reliance of the learned Trial Judge on the Call Detail
Records (CDR) collected from the mobile handset of the accused
persons including that of the petitioner, there is no record found from the
said mobile handset of the petitioner to implicate him or even to link
him to the alleged incident. However, the learned Trial Judge without
analysing the relevant evidence as far as the said CDR is concerned,
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without any linkage, has by a blanket order implicated the petitioner in
the case and his prayer for discharge was also rejected along with that of
other accused persons in the case.
9. It is the submission of the learned counsel that the learned
Trial Judge ought to have exercise his power under Section 227 of the
Cr.P.C to discharge the accused person on the ground that firstly, there is
no evidence or even suspicion as far as the involvement of the petitioner
in the case is concerned and secondly, even if there is suspicion but with
no grave suspicion the court ought to have discharged the
petitioner/accused person.
10. In support of his contention, the learned counsel has cited the
following judgments:
i. Sajjan Kumar v. Central Bureau of Investigation, (2010) 9
SCC 368, para 17, 18 and 21;
ii. State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp
(1) SCC 335, para 102;
iii. A.M. Mohan v. State represented by SHO & Anr., 2024
SCC Online SC 339, para 21 and 24.
11. Per contra, Mr. H. Kharmih, learned Addl. P.P appearing for
the State respondent while resisting the argument advanced by the
learned counsel for the petitioner has submitted that from the facts and
circumstances of the case and the materials on record what is apparent is
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that on receipt of the report of the incident regarding the attempt to
murder and the severe assault on the person of the victim, Smti. Agnes
Kharshiing, the Officer-in-Charge, Khliehriat P.S has registered a case
being Khliehriat. P.S. Case No. 195(11)2018 under Section 307/392/34
IPC and investigation was launched.
12. In course of investigation the Investigating Officer had
gathered all relevant evidence and had also examined a number of
persons on the basis of which those persons who are suspected to be
involved in the incident were arrested and charge sheet has eventually
been submitted implicating as many as 26(twenty-six) persons as
accused. As far as the petitioner herein is concerned, the I/O on coming
to learn of his involvement in the incident, attempt was made to arrest
him, however, in spite of the diligent efforts of the I/O it appears that the
petitioner had absconded from his known place of residence. The I/O
following due procedure has moved the concerned court and after
issuance of warrant of arrest not being effective, the petitioner was
eventually declared as an absconder and proclamation order under
Section 82 Cr.P.C was issued against the petitioner. The action of the
petitioner can only lead to one conclusion, that is, his involvement in the
case and as such, the learned Trial Judge by passing the impugned order
directing for framing of charge against him is justified.
13. The learned Addl. P.P has however conceded that there is no
direct evidence in the form of statement by any of the witnesses to
implicate the petitioner in the case however, on the basis of
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circumstantial evidence and the fact that he chose to evade the
investigation process, the decision to reject the application for discharge
filed by him and others is well founded.
14. It is finally submitted that this is a case where the facts and
circumstances would be sufficient enough to allow the trial court to
continue with the proceedings and for appropriate charges to be framed
against the petitioner and the other accused persons involved.
15. This Court taking into account the contents of the application
under Section 482 Cr.P.C and also the contention and submission made
by the respective counsels for the parties and also on perusal of the copy
of the charge sheet annexed with the petition, is made to understand that
on 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 a
police case was registered and investigation conducted, the I/O having
found that there exist prima facie case involving the petitioner herein
and others, the trial court had eventually proceeded for consideration of
charge but was made to decide on an application under Section 227
Cr.P.C filed by the petitioner herein and others seeking their discharge
from the liabilities of the case.
16. The learned Trial Judge on consideration of the said
application seeking discharge registered as Crl. Misc Application No. 26
of 2023, after hearing the parties had passed the impugned order dated
05.02.2024 rejecting the said application. Hence this petition.
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17. Before proceeding further, it would be but appropriate to look
at the provision of Section 227 Cr.P.C which reads as follows:
“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.”
18. In course of a criminal trial one of the most important stages
that a trial court has to undertake is the question of framing of charge. It
is incumbent upon the trial court to consider this stage very seriously as
it will have a far-reaching impact on the fate of the prosecution’s case as
well as on the right of the accused person who may have to go through a
long and arduous trial but may eventually be found innocent simply for
the fact that charges which are unfounded have been foisted upon such
accused person. Therefore, the law provides that the trial court shall
consider all the materials on record, to sift the same with the intention to
find out whether there are actually reliable evidence or no evidence at all
to proceed against the accused person.
19. In this respect, the Apex Court in a catena of judgment has
spelled out a number of principles which ought to be considered by the
Trial Judge in accordance with the provision of Section 227 Cr.P.C.
20. Such principles as laid down by the Hon’ble Supreme Court is
found in a number of judgments, even one such judgment dating back to
the year 1979 where in the case of Union of India v. Prafulla Kumar
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Samal & Anr. reported in (1979) 3 SCC 4, at para 10 is found the
following:
“10. Thus, on a consideration of the authorities mentioned
above, the following principles emerge:
(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 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 appearing in the
case and so on. This however does not mean that the
judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.”
21. In the case of Sajjan Kumar (supra) relied upon by the
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petitioner at para 17, the Hon’ble Supreme Court while discussing on
the scope of Section 227 Cr.P.C has reiterated its decision made in the
case of Prafulla Kumar Samal (supra).
22. In the light of the settled position of law as has been indicated
hereinabove, coming to the facts and circumstances of the case of the
parties herein, the learned Addl. P.P has candidly admitted that there is
no direct evidence of the involvement of the petitioner as far as the
incident of assault and attempt to murder upon the said victim is
concerned, no witnesses examined by the I/O have named the petitioner
as one of the perpetrators of the offence. However, the only allegation
against the petitioner is based on the fact that he had absconded and
refused to cooperate with the investigation till such time he voluntarily
took part in the proceedings after obtaining bail protection, his actions
can only lead to one conclusion that he is primarily involved in the said
incident.
23. Even on perusal of the impugned order nothing has been
pointed out as far as the direct involvement of the petitioner is
concerned. The only reference made is that the petitioner had at some
point of time absconded and failed to cooperate with the investigation.
The learned Trial Judge has also rejected the application for discharge
on the premise that “On careful analysis of the CDR, it is seen that
accused persons herein were somewhat present in and around the P.O at
the alleged time of the incident.”. Again, from the charge sheet what is
noticed is the recording of the I/O as far as “Data of CDR, CAF &
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Tower Location/Dump and their analysis” wherein is listed the names of
16(sixteen) accused persons with their mobile number, particulars etc.,
but there is no noting of the name and mobile number of the petitioner
herein.
24. In view of the above observation, this Court is of the
considered opinion that the learned Trial Judge has failed to look into
the specific evidence as regard the involvement of the petitioner herein
and has simply passed the impugned order clubbing the name of the
petitioner along with the other accused persons.
25. This application has been preferred under Section 482 Cr.P.C
on a two-prong prayer, that is, one for setting aside the impugned order
dated 05.02.2024 and the other for quashing of the related proceedings
as far as the petitioner herein is concerned.
26. This Court being convinced that the Trial Judge has
committed manifest error in rejection of the application for discharge
vis-à-vis the petitioner herein, the only conclusion would be that no
charges can be framed against the petitioner, consequently, it stands to
reason that if charges cannot be framed he is not to stand trial and
accordingly the proceedings against him are liable to be quashed, for in
not doing so, there would have occurred an abuse of the process of the
court which would then attract the provision of Section 482 Cr.P.C.
27. In the final analysis, this Court is convinced that the petitioner
has made out a case for setting aside and quashing of the impugned
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order dated 05.02.2024 and also for dropping of the proceedings only in
regard to his alleged involvement thereof which is accordingly done so
herein.
28. The petitioner is henceforth discharged from all the liabilities
in the case and similarly the bail bond executed also stands discharged.
29. Petition disposed of. No costs.
Judge
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Signature Not Verified
Digitally signed by
TIPRILYNTI KHARKONGOR
Date: 2024.08.30 18:46:36
PDT
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