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An order which is issued against the appellant based on evidence which is physical and readily available, cannot be held as ‘devoid of merit’ since such an order is legal and based on evidence. There is no irregularity or pervasiveness in such an order and any application against such an order on the grounds of merit must be rejected. This was held by the Hon’ble Justice Suresh Kumar Gupta in the case of Shivam Tiwari Vs. State of U.P. and Anr. [CRIMINAL APPEAL No. – 1265 of 2020] on the 14^th of July 2021 before the Hon’ble High Court at Allahabad.

The brief facts of the case are, the complainant namely Udayraj lodged the F.I.R. on 11.06.2019 with allegation that the son of the complainant, Amarjeet who is handicapped was going to Malipur for repairing his bicycle. When he reached near Budhawa Baba temple, then one Shivam Tiwari, S/o Jagdish Tiwari started casting abusive words and when the son of the complainant objected, then the accused-appellant inflicted injury to him. The F.I.R. was lodged against the accused-appellant under Sections 323, 504, 506 IPC. During investigation, the son of the complainant, Amarjeet was examined medically on 13.06.2019 and injuries on his skull and limbs were found which were simple in nature caused by any hard and blunt object, duration about 2-4 days old. Based on this FIR, the learned special judge passed an order against the appellant on 07.10.2020 convicting him under sections 323, 504 and 506 IPC and section 3 (1) (d) (dha) of SC/ST Act. Aggrieved by this, the appellant filed the present appeal before the Hon’ble High Court.

Learned counsel for the appellant submits that the investigating officer without collecting the credible evidence wrongly submitted the charge-sheet and learned trial court without applying judicial mind convicted the accused-appellant. He further submitted that, the appellant is innocent and has falsely been implicated due to parti-bandi. Learned counsel further submits that the complainant is a local leader of ruling party and he always doing the local politics and in the Lok Sabha election, he made pressure upon the villagers to cast their votes in favour of ruling party candidates, but the appellant opposed the activities of the complainant and denied to cast his and his family votes in favour of the ruling party. Furthermore, he complaint against the accused-appellant is frivolous and no offence is made out against the appellant. Therefore, the accused-appellant may be granted bail. However, the counsel for the respondents opposes the prayer for grant of bail to the accused-appellant and submits that after collecting the credible evidence, the investigating officer submitted the charge-sheet. It is also transpired from the injury report, six injuries were inflicted on the body of son of the complainant, Amarjeet. Therefore, the bail application of the accused-appellant is liable to be rejected.

The learned judge heard the contentions of both the parties and analyzed the case asper the rules laid down in P. Vijayan vs. State of Kerala and Ors. reported in 2010 (2) SCC 1398, wherein it was held that, “Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial”

The court also looked into the judgements in the case of Sajjan Kumar vs. Central Bureau of Investigation, JT 2010(10) SC 413 wherein it was held that, “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. If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.” 

Applying these rationales, the court rejected the petition and decreed that, “What is required from the court is to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case for framing a charge against the accused has been made out. Even in a case of grave or strong suspicion charge can be framed. The court has to consider broad probabilities of the case, total effect of the evidence and the documents produced including basic infirmities, if any. If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, but the court should not weigh the evidence as if it were holding trial. Accused can be discharged only when the charge is groundless. In my opinion, the learned Special Judge, SC/ST Act has taken into account all the relevant materials and passed the impugned order keeping in view the parameters laid down by the Apex Court in the aforesaid cases. Therefore, the submission of the counsel for the appellant that no charge was made out has no substance.”

Click here to read this judgement.