Date : 08/01/2018 ORAL ORDER
1. By this application under Article 227 of the Constitution of India the applicant original accused no. 6 calls in question the legality and validity of the order dated 30th November 2017 passed by the 5th Additional Sessions Judge, Bhuj Kachchh, below Exh.-1 in the Criminal Revision Application No. 24 of 2016, by which, the Revisional Court rejected the revision application filed by the applicant herein thereby, affirming the order dated 30th January 2016 passed by the learned Chief Judicial Magistrate, Bhuj Kachchh, below Exh. 46 in the Criminal Case No. 1188 of 2010.
2. It appears from the materials on record that the applicant herein is Page 1 of 28 HC-NIC Page 1 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER one of the accused persons in the criminal prosecution for the offence punishable under Sections 200, 203, 217, 465, 466, 467, 468, 471, 484, 406, 409 and 120 (B) of the Indian Penal Code. I need not go into the merits of the matter.
3. To put it briefly, the case of the applicant herein is that he was entrusted with an inquiry by the Collector as regards the legality and validity of the allotment of shops by the then Collector, some time in the year 2002-03. He conducted the inquiry and filed his reports in that regard. It is in connection with the conduct of such inquiry and the reports that he is also sought to be prosecuted for the offences enumerated above. According to him, there is no case worth the name to proceed against him for the alleged offences.
4. In such circumstances referred to above, he preferred an application Exh. 46 before the trial Court for discharge. The said application came to be rejected by the learned Chief Judicial Magistrate, Bhuj Kachchh vide order dated 30th January 2016. In his application seeking discharge many fold grounds have been raised. However, the learned Chief Judicial Magistrate while rejecting the application observed as under: Heard the learned counsel for the applicant. Nobody appears on behalf of the State and though, call is made for their behalf, nobody appears. Page 2 of 28 HC-NIC Page 2 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER The primary investigation of the offence against the accused was carried out in this case and charge sheet has been filed. The charge sheet is filed in this case for a serious offence. The police have neither filed any report that there is no case against the accused nor filed any report under Section 169 of the Cr.P.C. and not even filed summary report. Prima facie, when there is a case against the accused and charge sheet has been filed, it does not seem just and proper to release or discharge the accused as per the guidelines of the Honourable Supreme Court and so, the present application filed by the accused in this case is hereby stayed.
5. Being dissatisfied with the order passed by the learned Chief Judicial Magistrate rejecting the discharge application, the applicant herein filed a revision application before the Sessions Court. The Sessions Court rejected the revision application affirming the order passed by the trial Court observing as under:
Considering the arguments. On perusal of the papers, it appears that the prima facie case is made out against the accused then after the charge sheet has been filed against the accused by I.O. It is also made out that the police has not field any report as the accused has not committed the offence nor filed report under Section 169 of Cr.P.C. nor filed summary report. It is also made out that prima facie, the offence has been committed by the accused is on record and the charge sheet has been filed by the I.O. then it is not necessary to discharge the accused from accusations. Therefore, the order passed by the Lower Court is stands confirmed and it is not requires to be interfered with the order passed by the Ld. Lower Court. Hence, the present application is ordered to be dismissed.Page 3 of 28 HC-NIC Page 3 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER
6. Being dissatisfied with the order passed by the Revisional Court, the applicant herein is before this Court under Article 227 of the Constitution of India.
7. Mr. Desai, the learned senior counsel appearing for the applicant, submitted that both the Courts committed a serious error in passing the impugned orders. According to the learned senior counsel both the orders could be termed as non-speaking orders. The learned senior counsel would submit that there is no material worth the name in the charge sheet to connect the applicant herein with the alleged offence. The learned senior counsel further submitted that the contention with regard to bar of Section 195 of the Criminal Procedure Code was also raised before the Courts below but, the same has not been dealt with.
8. In such circumstances referred to above, the learned senior counsel appearing for the applicant prays that there being merit in the application the same be allowed and the impugned order be quashed.
9. On the other hand, this application has been vehemently opposed by Mr. Amin, the learned Public Prosecutor appearing for the State. Mr. Amin submitted that although the charge-sheet was filed for the offence punishable under Section 200 of the Indian Penal Code along with other offences, yet prima facie it appears that the trial Court has not taken Page 4 of 28 HC-NIC Page 4 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER cognizance of the offence under Section 200 of the Indian Penal Code. If that be so, then the issue with regard to bar of Section 195 Cr.P.C could not arise.
10. Mr. Desai, the learned senior counsel, to meet with the contention of the learned Public Prosecutor as regards the bar of Section 195 Cr.P.C. submitted that it is not permissible in law in any manner to circumvent the provisions of Section 195 Cr.P.C.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the Courts below committed any error in passing the impugned orders.
12. As stated above, I do not propose to express any opinion on merits. I am saying so because, prima facie, I am convinced that both the Courts have disposed of the applications and have dealt with the issue of discharge in a very slipshod manner. I am not at all convinced with the manner in which the Courts have dealt with the issue of discharge. In fact, both the Courts have done nothing except mechanically rejecting the plea for discharge. The Courts below have not even taken the pains to state the basic facts in the impugned order.
13. I had an occasion to deal with such an issue recently in the case of Page 5 of 28 HC-NIC Page 5 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER Balwantsinh Khengaji Jadeja Vs. V. B. Rathod and another (Special Criminal Application No. 4461 of 2016, decided on 07.11.2017). I may quote the observations made in the said Judgment thus: It seems well-settled that at the stage of the framing the charge, the court concerned is required to evaluate the materials and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court concerned may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as a gospel truth even if it is opposed to common sense or the broad probabilities of the case. What is the trial court expected to look into for the purpose of deciding the discharge application filed by the accused. Let me put it in a slightly different way. How is the court expected to deal with a discharge application filed by the accused. In State of Bihar Vs. Ramesh Singh, (1977)4 SCC 39, while referring to section 227 of the code, the Supreme Court observed:
...at that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, if there is a strong suspicion, which leads the Court to think that there is a 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. Page 6 of 28 HC-NIC Page 6 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER The Supreme Court observed that:- If the evidence which the Prosecutor to adduced 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 Supreme Court then went on to observe If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227. In Union of India v. Prafulla Kumar Samal, 1979 AIR (SC) 366, the Supreme Court reiterated the same principles but added that at the stage of section 227 of the code, the Court has the power to sift and weigh the evidence to find out whether there is any prima facie case against the accused but if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Judge should not act as a mouth- piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that 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. Page 7 of 28 HC-NIC Page 7 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER In Superintendent & Remembrancer of Legal Affairs, West Bengal v. Anil Bhunja & Ors., AIR 1980 SC 52, the Supreme Court observed that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. Same principles were reiterated by the Supreme Court in Niranjan Singh Karam Singh Punjabi v. Jiendra Bijja & Ors., AIR 1990 SC 1962. In State of Maharashtra & Ors. v. Som Nath Thapa & Ors. (1996)4 SCC 659, the Supreme Court observed that if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused. Even if the court finds that the accused might have committed the offence, it can frame the charges. The Supreme Court clarified that at the stage of framing of charge, the probative value of the materials on record should not be gone into. In State of Maharashtra v. Priya Sharan Maharaj & Ors., AIR 1997 SC 2041, the Supreme Court again reiterated that at the stage of framing of the charge, the court has to consider the material with a view to finding out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. Page 8 of 28 HC-NIC Page 8 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER In Dilawar Balu Kurane v. State Of Maharashtra., [(2002) 2 SCC 135], the Supreme Court extensively quoted observations made by it in Prafulla Kumar Samal's case (supra) and reiterated the same principles. It is also necessary to refer to the Supreme Court's judgment in the State of Karnataka v. L. Muniswamy & Ors., (1977)2 SCC 699. In that case, some of the accused were discharged by the learned Session Judge under section 227 of the code. So far as the other accused were concerned, the learned Sessions Judge adjourned their case for framing charges against them. Two revision petitions were filed against this order. These petitions were allowed by the Karnataka High Court on the view that there was no sufficient ground for proceeding against them. It is clear from the first paragraph of the Supreme Court judgment that the High Court had, in exercise of its powers under section 482 of the code, quashed the proceedings initiated by the State of Karnataka. Being aggrieved by this judgment, the State of Karnataka approached the Supreme Court. The Supreme Court referred to section 227 of the code and observed that the High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order of discharge is justified. The Supreme Court then referred to section 482 of the code and observed that in exercise of the wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Supreme Court further observed that this power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The following observation of the Page 9 of 28 HC-NIC Page 9 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER Supreme Court needs to be quoted. "In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction." It is significant to note that when the attention of the Supreme Court was drawn to the judgment in R.P Kapur v. State Of Punjab., AIR 1960 SC 866, to the effect that in its inherent jurisdiction, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not, the Supreme Court reaffirmed this position and referring to the facts before it observed that in that case, there was no material on record on the basis of which any court could reasonably come to the conclusion that the accused were in any manner connected with the crime. Of course, in this case, the Supreme Court has also referred to section 227 of the code and observed that in exercise of this power, the court can determine the question whether the material on record if unrebutted is such on the basis of which a conviction can be reasonably possible. But, it must be remembered that primarily the Supreme Court was dealing with the High Court's power under section 482 of the code and that was a case where there was no material to reasonably connect the accused with the crime. Undoubtedly, Page 10 of 28 HC-NIC Page 10 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER the powers of the High Court under section 482 of the code are very wide and as observed by the Supreme Court, it has to consider the ends of justice and not the ends of mere law. In any case, what the Supreme Court has said in this judgment does not go counter to what it has said on this point in a line of the judgments, which I have referred to hereinabove. In the case of Rukmini Narvekar v. Vijaya Satardekar, 2009 AIR (SCW) 118, the Apex Court has observed thus at paragraph-9:"245(1). When accused shall be discharged.- (1) If, upon taking all the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction , the Magistrate shall discharge him. (2) xxx xxx xxx9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227, Code of Criminal Procedure can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482, Code of Criminal Procedure the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. Thus, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhis case by the large Bench to which the very same question had been referred. Paragraph-28 of the aforesaid decision is as under:
28. We have carefully perused the decision of this Court in the State Of Orissa v. Debendra Nath Padhi. Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the Page 11 of 28 HC-NIC Page 11 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER width of the powers of the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal v. case. Thus we have to reconcile paragraphs 17 and 23 of the decision in State Of Orissa v. Debendra Nath Padhi. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalai v. Chaudhari Devi Lai University Sirsa and Anr., 2008 8 JT 621. As observed by the Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr., 2004 AIR (SC) 4778, OBSERVATIONS OF Courts are neither to be read as Euclids formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence materials cannot be looked into by the Court while framing of the charge in view of D.N. Padhis case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare eases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance. Further, in paragraph-29 of the said decision, the Apex Court has also laid down the circumstances under which (the defence can also produce some material i.e., where the material produced by the defence would convincingly establish that the whole prosecution version is totally absurd, preposterous or concocted. In the case of State Of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, which is a Page 12 of 28 HC-NIC Page 12 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER decision of a three judges Bench of the Apex Court, it has been held that, at the time of framing of the charge, the trial Court can consider only the material produced by the prosecution and there is no provision in the Code of Criminal Procedure granting the accused any right to file any material or document at that stage. The Apex Court went on to further observe that such a right is granted only at the stage of trial. The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of section 227 of the code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to cross-examination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of section 227 or section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be Page 13 of 28 HC-NIC Page 13 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage. Now reverting to the decisions of the Supreme Court in the case Sajjan Kumar, AIR 2011 SC (Cri) 1537 and Dilawar Balu Kurane, AIR 2002 SC 564, relied on by the respondents, I am of the opinion that they do not advance their case. The aforesaid decisions consider the provisions of Section 227 of the Code and make it clear that at the stage of discharge the Court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections, it is evident that they contain somewhat different provisions with regard to discharge of an accused. Under section 227 of the code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction". Sections 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent Page 14 of 28 HC-NIC Page 14 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken. Thus, there is difference in the language employed in these provisions. But, in my opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of the Supreme Court in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads as follows:- "43...............Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie"case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the Trial court is satisfied that a prima facie case is made out, charge has to be framed." It will only be apposite to refer to the quality of consideration of materials by a Criminal Court at the stage of S.239/240 of the Cr.P.C. In a warrant case instituted on a police report, the Magistrate is obliged to consider the police report and the documents sent with it under S. 173 of the Cr.P.C. and come to a conclusion as to whether the charge against the accused is groundless. In that event, the accused has to be discharged. In all other cases it will have to be held that there is ground to presume that the accused has committed the offence and charges must be framed under S.
240 of the Cr.P.C. I extract below Ss.239 and 240 of the Cr.P.C. Page 15 of 28 HC-NIC Page 15 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER "239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. 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. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried." It is important that there can be no third category of cases. All cases must either fall under S.239 or S.240 of the Cr.P.C. Once it is found that the charges are groundless, it will have to be presumed that there is sufficient ground at that stage to show that the accused has committed an offence triable under the law. The quality of consideration under Ss.239 and 240 of the Cr.P.C. has often been referred to loosely as verifying whether there is a prima facie case. The question of framing charges does arise in three different situations in the Code depending on the nature of the offence alleged and the manner in which the proceedings are initiated. Section 227/228 (sessions trial), 239/240 (warrant trial police Page 16 of 28 HC-NIC Page 16 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER charge) and 245(1)/246 (warrant trial - private complaint) are the situations. I extract the relevant provisions. "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 no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
228. Framing of charge.- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which...
246. Procedure where accused is not discharged.- (1) If, when such evidence has been taken, or at any previous stage of the case, 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." It is important to note that the consideration under Ss. 227 and 228, 239 and 240 and 245(1) Page 17 of 28 HC-NIC Page 17 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER and 246 of the Cr. P.C. are identical; in the sense that it will first have to be decided whether the proceedings are liable to brought to termination at that stage and if not, the Court is to presume guilt and proceed to the next stage of the proceedings. There can be no third category of cases which do not fall within either of the two sections in these pairs. A careful consideration of Ss.227 and 228,
239 and 240 and 245(1) and 246 of the Cr. P.C. must show that in all these three instances if the cases do not fall under the former of the pairs it has got to fall within the latter of the pairs. Though loosely the requisite satisfaction is referred to as a prima facie case, to me, it appears that it would be idle to assume that the quality of consideration of the materials at these stages are identical in all respects. When it comes to a police charge, discharge under S.239 of the Cr.P.C. is possible only if the Court entertains the satisfaction that the charge is groundless. This is evidently a shade different from the satisfaction which must be entertained under S. 245(1) of the Cr.P.C. Both would come under the generic description of a prima facie case. The Legislature appears to have realistically taken note of the fact that a police charge comes before the Court after it is vetted by the instrumentality of the police which is an indispensable part of the criminal justice delivery system. Section 239, Cr.P.C. lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in my opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in S.239, Cr.P.C. means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused. Page 18 of 28 HC-NIC Page 18 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as : - "The provision is the same as in S.227, the only difference being that the Magistrate may examine the accused, if necessary, of also S.245. The Magistrate shall discharge the accused recording reasons, if after (I) considering the police report and documents mentioned in S.173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all." In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545 : (1972 Cri LJ 329), the Supreme Court has stated about the ambit of S.251(A)(2) of the Cr.P.C. 1898, which is in pari materia with the wordings used in S.239, Cr.P.C. as follows : - "It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S.173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully Page 19 of 28 HC-NIC Page 19 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER adverting to the material on the record it must not blindly adopt the decision of the prosecution." In para 15, the Supreme Court has stated as :- "Under sub-sec. (2), if upon consideration of all the documents referred to in S.173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-sec.(3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges ." Thus the word 'groundless' as interpreted by the Supreme Court means that there is no ground for presuming that the accused has committed an offence. The Supreme Court had again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52. The Supreme Court has stated in the said case as :- "At this stage, even a very strong suspicion Page 20 of 28 HC-NIC Page 20 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER found upon materials before the Magistrate , which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." - The suspicion referred to by the Supreme Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words "a very strong suspicion" used by the Supreme Court must not be a strong suspicion of a vascillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the offence alleged. Section 239 has to be read along with Section 240 Cr.P.C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 240 Cr.P.C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till Page 21 of 28 HC-NIC Page 21 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify. The real test for determining whether the charge should be considered groundless under Section 239 of the Cri.P.C. Is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 Cri.P.C. The trial Court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all. There is one another legal issue which needs some clarification. In section 239 of the code, the words are upon considering the police report and the documents sent with it under Section 173. The misconception in the minds of many judicial officers of the subordinate courts is that the statements recorded under Section 161 of the Code cannot be considered. It is a serious misconception of law. Though the Criminal Procedure Code does not define the word "document" Section 29 of the Indian Penal Code defines it as follows : "29. "Document". - The word "document" denotes any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter." It could be clearly seen from Sections 239 and 240, Cri.P.C. that before a charge is framed, the trial Court is expected to consider the police report and the documents sent with it under Section 173, Cri.P.C. If the charge against the accused is found to be groundless, the trial Court shall discharge the accused under Section 239, Page 22 of 28 HC-NIC Page 22 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER Cri.P.C. Under Section 240 if, upon such consideration, viz. the consideration of the police report and the documents sent with it under Section 173, if there are materials then the trial Court shall frame a charge in writing against he accused. Now the question is whether the statements recorded under Section 161, Cri.P.C. can be termed as documents as contemplated under Section 291 , Cri.P.C. ? Section 2(r) Cri. P.C. defines police report as follows : "2(r). "police report" means a report forwarded by a police officer to a Magistrate under sub-Section (2) of Section 173;" Sub-Section (2) of Section 173 mandates the police officer to forward a report to the Magistrate empowered to take cognizance of the offence on a public report in the form prescribed by the State Government stating the names of the parties, the nature of the information, the names of the persons who appear to be acquainted with the circumstances of the case, whether any offence appears to have been committed and, if so, by whom, whether the accused has been arrested, whether he has been released on his bond, and if so, whether with or without sureties, and whether he has been forwarded in custody under Section
170. Sub-Section (5) of Section 173 states that when such a report is in respect of a case to which Section 170 applies, the police officer shall forward to the Magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation, the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as its witnesses. A combined reading of Section 29, I.P.C., Sections 2(r), 173 and 239 of Cri.P.C. and Section 240, Cri.P.C. make it abundantly clear that the "documents" referred in Section 239, Cri.P.C. are Page 23 of 28 HC-NIC Page 23 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER documents which are to be not only exhibited as exhibits during trial but also the statements of the witnesses recorded under Section 161, Cri.P.C. Under Section 239, Cri.P.C. the Magistrate shall consider the police report and the documents, which means he has to consider the report forwarded by the police officer under sub- Section (2) of Section 173 as well as the documents sent along with it under Section 173. A reading of Section 2(r) and Section 173, Cri.P.C. will show that police report is different from the documents. The word "document" as defined under Section 29,
I.P.C. denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter. The learned counsel, contended that, the statements of the witnesses recorded during investigation cannot be used at the time of trial and under the circumstances such statements recorded by the investigating agency under Section 161 could not be looked into while deciding the question as to whether the accused is entitled for discharge or a charge has to be framed. In my view the argument of the petitioner's counsel cannot have any legs to stand. Though the statements recorded from the witnesses cannot be exhibited as documents and such statements recorded during investigation cannot be made use of, in an enquiry or trial except as provided under Section 162, Cri.P.C., such statement can be made use of under Section 145 of the Evidence Act for the purpose of cross-examination of a witness as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. From the reading of Section
145 it is clear that the statements of witnesses recorded under Section 161, though cannot be Page 24 of 28 HC-NIC Page 24 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER made use of, in view of Section 162 Cri.P.C., they can still be used against a witness under Section
145 Evidence Act, to contradict him as his prior statement. If the contention of the petitioner's counsel is accepted then the trial Court will not have the opportunity of deciding the matter under Section 239, Cri.P.C. and any discharge passed by the trial Court or a charge framed by it will be without consideration of the relevant particuars which are germane to a decision at that stage. Let me summarise the law referred to above and discussed: (1) The Judge, while considering the question of framing the charges, 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. What do we understand by the term prima facie. Prima facie may be used as an adjective meaning
sufficient to establish a fact or raise a presumption unless disapproved or rebutted. A prima facie case is the establishment of a legally required rebuttable presumption. (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 prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a universal law. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence adduced 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) The court concerned, while deciding the Page 25 of 28 HC-NIC Page 25 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER discharge application filed by the accused, should not merely act 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. However, this 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. The most important test is to evaluate the materials and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. I am not at all convinced or rather satisfied with the manner in which both the courts in the present case have dealt with the issue of discharge. In fact, both the courts have done nothing except mechanically rejecting the plea for discharge. The courts below have not taken the pains to even state the basic facts in the impugned orders. It is expected of the Presiding Officer to discuss the basic facts so that the case of the prosecution can be understood. Once the basic facts and the case of the prosecution is stated in brief, the second step in the procedure should be to look into the materials on record connecting the accused with the alleged offence. When I say the materials on record, I mean to say the incriminating circumstances emerging from the record of the case prima facie creating a strong suspicion in the mind of the court as regards the complicity of the accused in the alleged offence. These circumstances should be narrated and discussed in brief. It is, thereafter, that the court concerned should reach to an appropriate conclusion, whether the case for discharge is made out or not. It is not proper for the court to say that, whether any prima facie case against the accused is made out or not, will be looked into at the time of trial Page 26 of 28 HC-NIC Page 26 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER when the oral evidence is led by the prosecution. Therefore, it is very important for all the Judges of the subordinate courts across the State to follow the procedure for the purpose of deciding the discharge application. A discharge application should not be disposed of mechanically without any application of mind. It is only if the trial Court or the revisional court discusses something in the order that the High Court will be able to understand what is the exact case against the accused and the incriminating materials against the accused. Therefore, it is very essential that while deciding the discharge application, the court concerned should first give a fair idea about the case of the prosecution, of course, in brief. Once the case of the prosecution in brief is explained, thereafter, the court should discuss the submissions that might have been canvassed on behalf of the accused and thereafter the court is obliged to narrate or state in the order the incriminating circumstances against the accused on the basis of which the charge-sheet is filed.
14. In view of the above, both the orders are hereby quashed. The matter is remanded to the Court of the learned Chief Judicial Magistrate, Bhuj - Kachchh, for fresh consideration of the application Exh. 46.
15. The application Exh. 46 filed by the applicant herein praying for discharge shall be decided keeping in mind the observations made by this Court in the case of Balwantsinh Khengaji Jadeja (supra). The trial Court shall decide the said application at the earliest, preferably within a period of four weeks from the date of receipt of the writ of this order. Page 27 of 28 HC-NIC Page 27 of 28 Created On Tue Feb 27 19:23:20 IST 2018 R/SCR.A/9982/2017 ORDER
16. Ultimately, if the application is rejected, it shall be open for the applicant to challenge the said order before the appropriate forum in accordance with law.
17. I once again clarify that I have not expressed any opinion on the merits of the case. It shall be open for the applicant to raise all the contentions available in law including one of the bar of Section 195 Cr.P.C. (J.B.PARDIWALA, J.) Bhoomi Page 28 of 28 HC-NIC Page 28 of 28 Created On Tue Feb 27 19:23:20 IST 2018
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