Once statements under sections 161/164 of CrPC are available on record, at stage of framing of charge, then their veracity cannot be examined in petition u/s 482, says P&H HC

Read Order: Brij Nandan & Anr. v. State of Punjab

Monika Rahar

Chandigarh, February 11, 2022: The Punjab and Haryana High Court has recently held that at the time of framing of charges, only a prima facie case is to be seen and a high degree of suspicion is sufficient to frame charges. The Court also adjudged that the Court concerned is not to examine the statements/ documents in the report under Section 173(2) Cr.P.C. so as to record a judgment of conviction or acquittal. 

Further, the Bench of Justice Jasjit Singh Bedi opined that once the statements , recorded under Sections 161/ 164 of Cr.P.C. are available on record, at the stage of framing of charges, the veracity of the same cannot be examined in a petition under Section 482 Cr.P.C. as that would amount to the appreciation of evidence which is impermissible at this stage. 

The above-mentioned observations were made in a case wherein an FIR was registered by the complainant under Sections 409 and 120-B of the IPC, against five accused persons (including the present petitioners) with the allegation that they were indulging in corruption in the Railway Department and because the complainant lodged a complaint against these persons, therefore, they hatched a conspiracy against him. It was also alleged that the accused took away and tampered with the relevant record about the complainant’s service period. 

Based on this FIR, the investigation began and a report under Section 173 of Cr.P.C. was submitted against the three accused. The Trial Court while discharging one accused (Jarnail Singh), directed that the remaining two accused (petitioners) be charged under Sections 409/120-B of IPC. 

The aggrieved petitioners, then, filed a Criminal Revision Petition before the Additional Sessions Judge. The complainant along with the State also challenged the said order whereby,  Jarnail Singh was discharged.

These review petitions were dismissed and the case of Jarnail Singh was remanded back for fresh consideration. These two orders were thus impugned in the present case before the High Court by the petitioners. 

The petitioners’ counsel firstly argued that sanction for prosecution under Section 197 of Cr.P.C. was refused by the Railway Department. The petitioners and complainant were employees of the Department and therefore, the trial court could not have framed charges against the petitioners.  He also argued that once, the Railway Department had not lodged any complaint about taking away/ tampering with the documents, the FIR and the subsequent proceedings ought to have been quashed. 

Rejecting this argument for being meritless, the Court opined after taking into consideration a plethora of decisions of the Supreme Court as also its own decisions, that it is no part of one’s official duty to commit an offence under Section 409 of IPC for which the petitioners have been charge-sheeted. The Court further opined that admittedly, the offence concerned was committed during the service of the petitioners but not in the discharge of their official duties. 

Therefore, the Court concluded that the act of the petitioners in taking away the document as alleged could never be a part of their official duty and hence, prior sanction for prosecution under Section 197 of the Cr.P.C. was not required.

The next contention of the counsel for the petitioners was that the statements of the witnesses were discrepant and there was insufficient material on the record to charge sheet the petitioners, more so, when the Department had chosen not to take any action against them. 

To address this, the Court referred to Section 239 Cr.P.C. as also to the leading precedents on the issue and opined that the Magistrate considered has to examine the report under Section 173 Cr.PC and the attached documents to frame charges or not. 

Further, it was observed by the Court that the statement of the witness under section 161 Cr.P.C. clearly showed that the documents in question were taken away by the accused- petitioner, thereby prima facie committing an offence under Section 409 of IPC. The Court also mentioned that the same documents which were allegedly misappropriated, were found to be missing by the Department itself. 

Thus, in this light, the Court clarified that once, witness statements under Sections 161/164 of Cr.P.C. are available on record, at the stage of framing of charges, the veracity of the same cannot be examined in a petition under Section 482 Cr.P.C. 

Even otherwise, defence documents relied upon by the petitioners’ counsel could not be examined by the Court and charges were to be framed based on the report under Section 173 (2) of Cr.P.C. along with the documents attached therewith, added the Court. 

Thus, upholding the impugned/ assailed orders of the Courts below, the Bench concluded the matter by stating that merely because the Railways Department did not proceed against the petitioners, would not be a ground to discharge the accused.

The petition was thus dismissed.