Naheed Ara Moonis, J. - (1.) HEARD Sri Kamal Krishna, learned senior Counsel appearing on behalf of the revisionist, learned A.G.A. and perused the record.
(2.) THE instant criminal revision preferred by the revisionist against the judgment and order dated 22.7.1997 passed by the Ist Additional Sessions Judge, Banda in Session Trial No. 260 of 1996 whereby the charges have been framed against the revisionist for an offence punishable under Section 120B Indian Penal Code. It is submitted by the learned Senior Advocate appearing on behalf of the revisionist that the order passed by the court below framing charge under Section 227 Code of Criminal Procedure for an offence under Section 120B Indian Penal Code suffers from manifest error of law. The court below without passing any order on the application of the revisionist claiming discharge has passed the order of framing of charge against him. It is contended by him that the application was moved on 12.3.1997 by the revisionist that he has been falsely implicated in the case no prima facie offence is made out against him. There is no evidence on the basis of which the prosecution of the applicant be launched by him and in the absence of any evidence the charges cannot be framed, therefore, he claimed to be discharged. It is submitted by the learned Counsel for the applicant that a first information report was registered by the son of the deceased that on 10.6.1996 his mother had gone for searching her goats in the forest but till evening she did not return back and that on 12.6.1996 when he went to search she was lying in a Nala. She was about about 60 years. On the basis of the aforesaid information the case was registered with case Crime No. 137 of 1996 under Section 302 Indian Penal Code. The case was investigated by the Investigating Officer, which culminated into submission of charge sheet against him and one Bachaniya. Thereafter the case was committed to the court of Sessions, which is pending as S.T. No. 260 of 1997, under Section 302 Indian Penal Code. The applicant moved an application claiming discharge under Section 227 Code of Criminal Procedure, which was rejected by the court below on 22.7.1997. It has been contended by the learned Counsel for the applicant that the statements, which have been recorded during investigation shows that the case is based upon circumstantial evidence and the applicant who is not named in the first information report has been implicated merely on the confessional statement of the applicant and co -accused Bachaniya. The confessional statement is not admissible in evidence and as such the same cannot be taken into account to connect the applicant in the commission of the crime. The statement of the witnesses viz Khullu Arak, Sukh Ram and Puttu Arak were recorded under Sections 161 Code of Criminal Procedure but do not speak about the complicity of the applicant/revisionist. Merely on the basis of the statement of the co -accused and his wife the applicant has been charged for an offence under Section 120B Indian Penal Code. The statements of the witnesses itself show that the co -accused Bachaniya is responsible for the commission of the crime. The applicant has been implicated only because of the party bandi. Even there is no proof of any conspiracy to connect the applicant/revisionist with the crime along with the co -accused Bachaniya, therefore, framing of the charge against the applicant is bad in law. In this regard the learned Counsel for the applicant has cited decisions of the Apex Court relying upon : A.I.R. 1990 SC 1962 Niranjan Singh v. State of Maharashtra and 1996 SC 704 Satish Mehra v. Delhi Administration, Delhi and laid emphasis that at the time of framing of charge the revisionist was not heard. On the other hand learned A.G.A. has contended that the court below has committed no error in framing the charge against the accuse/revisionist. This Court cannot go into the merits/demerits of the case. This much is only has to be considered judicially that whether any material proposes to prosecute the accused makes out a prima facie case, the material, which has been collected by the Investigating Officer has to be considered only for coming to the conclusion that prima facie case has been made out or not. At this stage meticulous analysis of materiel collected by the Investigating Officer is not required. Learned A.G.A. has relied upon the decision in the case of State of M.P. v. Mohan Lal Soni reported in 2006 SC 38 and has further contended that the revisional jurisdiction is very limited, which cannot go to examine the factual aspect of the case, which will be considered and examined during trial after leading proper evidence by giving proper opportunity to the parties. Having heard the learned Counsel for the parties it is settled position of law that the defence of the accused/revisionist cannot be considered prior to the stage of framing of charge as the revisionist has right of discharge under Section 239 Code of Criminal Procedure and Sections 227 and 228 Code of Criminal Procedure through a proper application wherein he can take all the submissions in the discharge application before the trial court. From the perusal of the record it prima facie appears that the lady of 60 years old was done to death by strangulation. Several injuries were found on her body according to the post mortem report. It also appears from the statement of the applicant that the co -accused had conspired together to get an opportunity to outrage her modesty and when she had resisted she was strangulated to death and thrown in a nala. The applicant has assured co -accused to give him 10,000/ - rupees and he himself went to lodge the first information report along with the son of the deceased so that nobody could raise any doubt upon him.
(3.) IN such circumstances it cannot be said that the applicant/revisionist was not involved. On the basis of the material collected by the Investigating officer during the investigation the charge sheet was submitted and the court below had framed the charges against the accused/applicant under Section 120B I.P.C. The case of Satish Mehra as relied upon by the revisionist's counsel has been dealt with in the subsequent decision of State of Orissa v. Devendra Nath Padi reported in , LI (2005) ACC 209 wherein it was held that Satish Mehra's case has not been correctly decided that accused may also produce evidence at the stage of 227 Code of Criminal Procedure and has held that at the time of framing of charge or taking cognizance the accused has no right to produce any material or have any say. Satish Mehra's case has also been referred in the case of Palwinder Singh v. Balvinder Singh reported in , LXI (2009) ACC 399 and held that charge can also be framed on the strong suspension marshalling and appreciation of the evidence is not within the domain of the court. Thus for framing of charge even a strong suspicion is sufficient. It is settled law that at the time of framing of charge the court is not expected to go into the deep on the material on record. If upon consideration the court is satisfied that prima facie a case is made out against the accused the court must proceed to frame charge in terms of Section 228 of the Code. The revisionist in the instant case has tried to protract the trial by moving an application claiming discharge, which he could move under law only after framing of the charge and not before that. The Code itself does not provide that accused can file any material or document at the stage of framing of charge and that right is granted only at the stage of trial. It cannot be said that for framing of charge the evidence of co -accused cannot be looked into, therefore, the court below on the basis of the material collected by the Investigating Officer proceeded against the applicant by framing the charge under Section 120B I.P.C. suffers from no error much less of any error of law, therefore, this revision has no merit and as such it is hereby dismissed and the interim order dated 2.9.1997 whereby the proceedings of session trial were stayed is hereby vacated. It is expected that the trial court shall proceed with the case in accordance with law. The office is directed to communicate this order to the court below.;