Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1695 of 2010 ====================================================== 1. Mayashanker Mishra 2. Mahanand Mishra, both the sons of Ram Naresh Mishra. 3. Chunu Mishra @ Chunku Mishra 4. Vitul Kumar Mishra @ Vithul Kumar Mishra, both sons of Mahanand Mishra, 5. Devendra Chaudhary @ Devendra Yadav, 6. Subhash Chaudhary @ Subash Yadav both sons of Dhaneshwar Chaudhary. 7. Dhaneshwar Chaudhary son of late Chanam Chaudhary, all resident of viallge- Dighwa, P.S. Bhorey, Distt-Gopalganj Versus .... .... Petitioner/s 1. The State Of Bihar 2. Pursotam Mishra, son of Sharda Prasad Mishra, R/O Road No. 21 Sri (Chakaram) P.S. Budha Colony, Distt-Patna. Krishna Nagar ……………………………………………………………..Respondent/s ====================================================== Appearance : For the Petitioners : Mr. Suresh Pd. Bhakta Mr. S.K. Pandey, Advocates. For the O.P. No. 2 : Mr. Ashok Kr. Sinha Mr. Varun Kumar, Advocates. For the State : Mr. P. N. Pandit, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 4 08-07-2013 Heard learned counsel for the petitioners, learned counsel for O.P. No.2 along with learned Additional P.P. 2. The main grievance raised on behalf of petitioner while challenging the order impugned by which the learned trial court had rejected the prayer of the petitioner purported to be
Facts
under Section 227 of the Cr.P.C. is that (1) the learned lower court had not assigned the reasons to proceed with the case (2) learned lower court failed to make roving enquiry of the materials available on the record and (3) there was total absence of Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 2 connecting material i.e., the injury report and so the learned lower court should have felt its repercussion over the case of the prosecution and had discharged the petitioner.
Legal Reasoning
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 in cross- accepted before examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 10. The said view has again been endorsed in the case of Vinay Tyagi v. Irshad Ali as reported in 2013 Cr.L.J. 754 at paras 11 and 12 which are as follows:- 11 ………After taking cognizance, the next step of definite significance is the duty of the Court to frame charge in terms of Section 228 of the Code unless the Court finds, upon consideration of the record of the case and the documents submitted therewith, that there exists no sufficient ground to proceed against the accused, in which case it shall discharge him for reasons to be recorded in terms of Section 227 of the Code. It may be noticed that the language of Section 228 opens with the words, „if after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 9 the used legislature presuming that the accused has committed an offence‟, he may frame a charge and try him in terms of Section 228(1)(a) and if exclusively triable by the Court of Sessions, commit the same to the Court of Sessions in terms of Section 228(1)(b). word has Why the „presuming‟ is a matter which requires serious deliberation. It is a settled rule of interpretation that the legislature does not use any expression purposelessly and without any object. Furthermore, in terms of doctrine of plain interpretation, every word should be given its ordinary meaning unless context to the contrary is specifically stipulated in the relevant provision. Framing of charge is certainly a matter of earnestness. It is not merely a formal step in the process of criminal inquiry and trial. On the contrary, it is a serious step as it is determinative to some extent, in the sense that either the accused is acquitted giving right to challenge to the complainant party, or the State itself, and if the charge is framed, the accused is called upon to face the complete trial which may prove prejudicial to him, if finally acquitted. These are the courses open to the Court at that stage. Thus, the word „presuming‟ must be read ejusdem generis to the opinion that there is a ground. The ground must exist for forming the opinion that the accused had committed an offence. Such opinion has to be formed on the basis of the record of the case and the documents submitted therewith. To a limited extent, the plea of defence also has to be considered by the Court at this stage. For instance, if a plea of proceedings being barred under any other law is raised, upon such consideration, the Court has to form its opinion which in a way is tentative. The expression „presuming‟ cannot be said to be superfluous in the language and ambit of Section 228 of the Code. This is to emphasize that the Court may believe that the accused had committed an offence, if its ingredients are satisfied with reference to the record before the Court. At this stage, we may refer to the judgment of this Court in the case of Amit Kapur v. Ramesh Chander & Anr. [JT 2012 (9) SC 329] wherein, the Court held as under : Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 10 and relation documents “The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in to quashing of an FIR is circumscribed by the factum and caution afore-noticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the „record of the case‟ submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the Section exists, then the Court would be right in presuming that there is the accused ground to proceed against and frame the charge accordingly. This presumption is not a presumption of law as such. in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. It may The satisfaction ofthe court Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 11 inter court remedy However, also be noticed that the revisional jurisdiction exercised by the High Court is in a way is final and no available in such cases. Of course, it may be subject to jurisdiction of this court under Article 136 of the Constitution of India. Normally, a revisional jurisdiction should be exercised on a question of law. factual appreciation is involved, then it must find place in the class of cases resulting in a perverse the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or the same would not be a suspicion of sufficient ground for interference in such cases.” Basically, when finding. 12. On analysis of the above discussion, it can safely be concluded that „presuming‟ is an expression of relevancy and places some weightage on the consideration of the record before the Court. The prosecution‟s record, at this stage, has to be examined on the plea of demur. Presumption is of a very weak and mild nature. It would cover the cases where some lacuna has been left out and is capable of being supplied and proved during the course of the trial. For instance, it is not necessary that at that stage each ingredient of an offence should be linguistically reproduced in the report and backed with meticulous facts. Suffice would be substantial compliance to the requirements of the provisions. 11. Plain reading of the corresponding Sections as well as going through the judicial pronouncements so referred above, it is evident that for the purpose of discharge of the accused in terms of Section 227 Cr.P.C. a very limited scope has Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 12 been provided permitting the court to exercise its power only to the extent of consideration that there is no sufficient ground for proceeding against the accused side by side a vast exposure is found under Section 228 of the Cr.P.C. wherein mere a presumption is found sufficient to proceed with the trial. 12. Now coming to the submissions raised on behalf of the petitioner, the roving enquiry as demanded and suggested on behalf of the petitioner to the extent of application of each of Section in the background of absence of certain documents, such as injury report, for the present, is not at all attracted because of the fact that trial is yet to commence. As such the points so raised on behalf of the petitioner are certainly found out of consideration for the present purpose and consequent thereupon, the instant petition is found to be devoid of merit and is accordingly, rejected. perwez (Aditya Kumar Trivedi, J)
Arguments
3. Further elaborating his plea, the learned counsel for the petitioner submitted that both the parties are agnates and are residents of Gopalganj district and therefore they have been purposely dragged within the jurisdiction of Patna Judgship with false and frivolous allegations just to harass them. It has further been submitted that after going through the narration of the complaint petition, it is apparent that whatever allegation has been made, all are improbable because of the fact that petitioners‟ presence at the place of complainant cannot be expected with the weapons so alleged. In likewise manner, it has also been submitted that having the weapon, at least, licensee rifle in his hand, and having strained relationship between the parties, the complainant would not have allowed the petitioner to come inside the house and commit an occurrence. Therefore, whatever allegations have been made, all are palpably false, imaginary and intentionally introduced by way of complaint petition. 4. Also submitted that in a very dramatic way, presence of witnesses has also been secured. Therefore, the occurrence as alleged, is suffering from so many ifs and buts and Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 3 on account thereof, petitioners are entitled for discharge. 5. On the other hand, learned counsel appearing on behalf of O.P. No.2 opposed the prayer and submitted that it is not a fit case, at least for present purpose, to have a meticulous examination of the materials available on the record like a trial court. 6. Learned APP also fairly endorsed the view. 7. Framing of charge is the nascent stage of the trial. Virtually, trial begins from the stage of framing of charge. Having parallel scrutiny of the respective provisions prescribed for framing of charge with regard to the case being exclusively triable by the court of sessions, by a court of Magistrate relating to police case, complaint case (warrant triable), summons trial, it is evident that there is some sort of distinction amongst them with regard to consideration of the materials at the stage of the framing of charge. So far present petition is concerned, it relates to denial by the court of sessions and for that it requires visit to Section 227 as well as 228 of the Cr.P.C and for better appreciation are quoted below 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 for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Comments. The order of discharge should be supported is not sufficient ground there that Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 4 by reasons; Sunil Kumar Jha alias Bittu Jha v State of Bihar, (1997) 2 Crimes 131 (Pat) 228. Framing of charge - (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for resuming that the accused has committed an offence which— (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried. 8. At the stage of framing of charge, as is evident from joint reading of Section 227 as well as 228 of the Cr.P.C. the court has to hear both the parties and scrutinize the materials whatever has been produced in accordance with law for presuming that accused has committed the offence so alleged. In case, the material is found deficient to satisfy the court, the court is found competent to discharge the accused by having a reasoned order. Contrary to it, will frame charge. However, this stage is bifurcated in two parts. The first one is when the allegation on its face speaks with regard to an occurrence not triable by the court of sessions that means to say, to be tried by the Magistrate for that Section 228(1) (a) is to be taken into account at the other hand if opined Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 5 that the offences are to be exclusively triable by the court of sessions, the court has to proceed in terms of 228(1)(b) of the Cr.P.C. 9. The only disputed question raised at present, times without number, the stage of framing of charge relates with mode of appreciation of material available on record, has been adjudicated upon by Hon‟ble Apex Court. In the case of Amit Kapoor v. Ramesh Chander, as reported in J.T.(2012) 9 SC 312, the same question has arisen and that has been properly answered at paras 10 and 11which are as follows:- 10. The above-stated principles clearly show that inherent as well as revisional jurisdiction should be exercised cautiously. If the jurisdiction under Section 482 of the Code in relation to quashing of an FIR is circumscribed by the factum and caution aforenoticed, in that event, the revisional jurisdiction, particularly while dealing with framing of a charge, has to be even more limited. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed the charge against accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence the accused and frame Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 6 and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code. It may also be noticed that the revisional jurisdiction exercised by the High Court is in a way final and no inter court remedy is available in such cases. Of course, it may be subject to jurisdiction of this Court under Article 136 of the Constitution of India. Normally, a jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases. revisional 11. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh[ 1977 (4) SCC 39] the case the prosecution “4. Under Section 226 of the Code while opening the for Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the court to consider the record of the case and the documents submitted therewith and to hear the Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 7 submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If „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‟, as enjoined by Section 227. If, on the other hand, „the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— … (b) is exclusively triable by the court, he shall frame in writing a charge against the accused‟, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a the guilt or finding regarding otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. 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 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 Patna High Court CR. REV. No.1695 of 2010 (4) dt.08-07-2013 8 it the is challenged for proceeding with