Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 1452 (RAJ)

Balkar Singh v. State of Rajasthan

1997-12-04

AMRESH KUMAR SINGH

body1997
Honble SINGH, J.–Heard the learned counsel for the petitioners and learned Public Prosecutor. (2). All the three petitions filed under section 482 Cr.P.C. are against the framing of the charges against the petitioners on 21- 11-1994 in criminal case No. 433/89 State Vs. Parminder Singh and others. It is, therefore, proper that all the pe- titions should be disposed of together. (3). The learned counsels for the petitioners have submitted that the order dated 21-11-1994 recorded on the order-sheet of the case is not a speaking order in as much as the learned Additional Chief Judicial Magistrate has not given reasons for coming to the conclusion that there were grounds for framing charges against the petitioners. The ground on which these petitions is based, is that the charges which have been framed against the petitioners, appear to have been framed without applying judicial mind because every petitioner has been charged of the offence of entering into a conspiracy to forged the degrees and mark-sheets issued by the Varanasi University, Kanpur University, Avadh University, Faizabad and Jivaji University, Gwalior and using the forged degrees for the purpose of obtaining appointment as a teacher. (4). It is submitted by the petitioners that so far as the degrees and mark-sheets used by the petitioners in S.B. Criminal Misc. Petition No. 134/95 are concerned the learned Magistrate has not given any reason for coming to the conclusion that the degrees and mark-sheets used by these petitioners were forged documents. My attention has been drawn to the photo stat copy of the letter dated 1.7.1989, sent by the Registrar of the Avadh University to the Station House Officer of the Police Station Sri Karanpur. By this letter which purports to have been issued by the Registrar of the Avadh University the Station House Officer of the Police Station Sri Karanpur was informed that the earlier letter dated 12-1-1989 contained wrong statement of the fact as the concerned employee was on leave and the subsequent letter dated 23-5-1989 contained correct statement of fact and that in fact all the 11 candidates (whose names were mentioned in the letter sent by the Station House Officer of the police Station) were candidates according to the record of the University. Those letters suggests that the degrees and mark-sheets used by the 11 candidates named in the letter sent by the Station House Officer were not forged documents. Those letters suggests that the degrees and mark-sheets used by the 11 candidates named in the letter sent by the Station House Officer were not forged documents. It is further submitted by the learned counsels for the petitioners that the learned Additional Chief Judicial Magistrate did not take into consideration the letter dated 1.7.1989 sent by the Registrar of the Avadh University and had he taken this letter into consideration, he might have come to the conclusion that the degrees and mark-sheets used by the 11 candidates referred in this letter were genuine documents. (5). Having regard to the submissions made by the learned counsels for the petitioners and the facts of the case and the provisions of the Criminal Procedure Code, I am, of the opinion that the arguments submitted by the learned counsels for the petitioners carry some weight. The procedure for conduct of trial of warrant cases is prescribed in Chapter XIX (1973). Sections 238,239 and 240 read: ``(238 When in any warrant-case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that he has complied with the provisions of section 207. 239 If, upon considering the police report and the documents sent with it under Section 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. 240 (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. 240(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). (6). Sections 239 & 240 require the Magistrate to hear the prosecution as well as the accused person before passing an order under Secs. 240(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). (6). Sections 239 & 240 require the Magistrate to hear the prosecution as well as the accused person before passing an order under Secs. 239 or 240 Cr.P.C. It is true that these two sections do not in so many words indicates that the prosecution shall open his case, but the fact that the prosecution is required to be heard before passing an order under Sec. 239 indicates that the prosecution should open its case by informing the court what allegations or accusations against the accused are and on what charge or charges the prosecution wants the accused to be tried and what is the evidence which the prosecution proposes to produce in support of its case. This information is to be given by the Public Prosecutor at the time of opening its case. After the prosecution is heard the accused is given as opportunity of being heard before the passing of any order under Secs. 239 or 240 Cr.P.C. (7). Since framing of charge requires the satisfaction of the Magistrate that there is ground for presuming that accused had committed an offence, it is necessary that the Magistrate should consider the material on record with a view to find that there is ground that accused had committed an offence. In simple cases where the facts are not in dispute or they do not require detailed discussion, omission of the part of the Magistrate to give reasons for charging or discharging the accused may not vitiate his order but in those cases where the facts are disputed and the grounds for framing charge are to be ascertained from the material collected by prosecution it is necessary that the Magistrate should give some indication of those grounds on the basis of which he was satisfied that there were grounds for presuming that the accused had committed one or more offences. (8). In the instant case the learned Additional Chief Judicial Magistrate does not appear to have applied his judicial mind to the material placed before him he has not indicated in his order the grounds on the basis of which he was satisfied that the accused-petitioners had committed the offence in respect of the charges framed against them. (8). In the instant case the learned Additional Chief Judicial Magistrate does not appear to have applied his judicial mind to the material placed before him he has not indicated in his order the grounds on the basis of which he was satisfied that the accused-petitioners had committed the offence in respect of the charges framed against them. A perusal of the charges framed against the petitioners clearly shows that judicial mind was not applied even at the time of explaining over the charges to the accused as required by Section 240 (2) Cr.P.C. Section 240 (2) Cr.P.C. provides that 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. (9). On perusal of the record of the case, I find that the prosecution nowhere alleged that every petitioner was involved in the forgery of degrees and mark-sheets of all the four Universities mentioned nor it was a prosecution case that the eight petitioners in S.B. Misc. petition No. 134/95 had used the degrees and mark-sheets issued by all the four Universities. On the face of record it appears that the learned Additional Chief Judicial Magistrate did not comply with the provisions of Section 240 (2) Cr.P.C. while reading and explaining the charges to the petitioners. (10). For reasons mentioned above these petitions deserves to be partly allowed. The charges framed against the petitioners by the learned Additional Chief Judicial Magistrate deserves to be quashed and are hereby quashed and the cases are remanded to the learned Additional Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Sri Karanpur District Shri Ganganagar with a direction that he will ascertain by perusing the case diary whether any letter dated 1.7.1989 purporting to have been sent by the Registrar of the Avadh University was received by the Investigating Officer and if so whether that letter had been submitted by him in the court. If that letter was in fact received by him and has been deliberately with-held the learned Additional Chief Judicial Magistrate shall direct the Investigating Officer to produce that letter in the court and supply the copies there of to the accused-petitioners as required by Section 207 read with Section 238 Cr.P.C. The learned Additional Chief Judicial Magistrate is further directed to consider the police report and the documents sent with the police report under Section 173 Cr.P.C. and hear both the parties again in accordance with the provisions of Section 239 & 240 Cr.P.C. and thereafter pass suitable order in accordance with law. it is further directed that in case one or more accused petitioner is discharged under Section 239 Cr.P.C. the reasons for discharge shall be given and in case charge or charges are framed against one or more petitioners under Section 240 Cr.P.C. the grounds for presuming that the accused had committed one or more offence shall be disclosed in the order to be passed by the learned Additioonal Chief Judicial Magistrate, whether such ground is in the nature of documentary evidence or oral evidence or circumstantial evidence. (11). The petitions are disposed of accordingly. A copy of the order along with record, be sent to the learned Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Sri Karanpur District Shri Ganganagar for information and necessary action.