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2000 DIGILAW 233 (CAL)

BIJOYESH GHOSH v. STATE OF WEST BENGAL

2000-05-09

MALAY KUMAR BASU

body2000
MALAY KUMAR BASU, J. ( 1 ) THIS is a revisional application under S. 401 read with S. 482 of the Code of Criminal Procedure directed against the order dated 2-11-1998 passed by Sri S. K. Neogi, Sessions Judge, Bench-V, City Sessions Court, in S. C. No. 42 of 1995. By this order learned Sessions Judge dismissed a petition of the petitioners (accused persons of that case) for an order of discharge under S. 227, Cr. P. C. and another petitioner under S. 311, Cr. P. C. By this petition the accused persons against whom charges had already been framed sought an order of discharge and by the petition under S. 311, Cr. P. C. They made a prayer for an order summoning certain persons for being examined as witnesses of the Code. The grounds on which this petitions were filed before the Court below were that although that Court framed charges against accused persons (present petitioners) for offences under Ss. 306 and 498-A, I. P. C. on the basis of the documents produced by police under S. 173, Cr. P. C. , learned Sessions Judge failed to take into consideration certain more documents which were in existence but the prosecution did not produce them, namely, statements of certain persons, statement of the deceased-Bhramar Ghosh made before the S. I. of police K. K. Basu wherein she stated that her husband and mother-in-law were not responsible for her burn injuries and another document, namely, G. D. Entry No. 193 dated 2-4-1989 made by the victim's father Tarun Kr. Sinha. Besides them, according to the revisional applicant Dr. Krishnendu De who recorded the alleged dying declaration of the victim, Bhramar Ghosh, stated in his statement under S. 161, Cr. P. C. before the I. O. that he had not recorded the same and it was recorded by one Rathindra Nath Ghosh, a friend of the victim girl's father. The contention of the applicant is that the Court below ought to have called for and considered all such pages. The learned Sessions Judge after considering the arguments advanced by both the sides came to the finding that he had no jurisdiction to discharge the accused persons when charges had already been framed against them after due consideration of the materials on record and hearing the learned Advocate for the accused. The learned Sessions Judge after considering the arguments advanced by both the sides came to the finding that he had no jurisdiction to discharge the accused persons when charges had already been framed against them after due consideration of the materials on record and hearing the learned Advocate for the accused. He was also of the view that the accused persons had by that time moved the Hon'ble High Court on a number of times on these questions filing revisional applications, but the Hon'ble Court while considering such matters never made any observation on the point of framing of the charge in question. According to the learned Sessions Judge no question of any prejudice being caused to the accused persons could arise, because the order for framing of charge was passed after hearing the learned Advocate for both the sides at length. The Court below also came to the finding as regards the petition under S. 311, Cr. P. C. that it was not the appropriate stage when such witnesses were to be called by the Court under the said section and at the appropriate time and stage the accused persons would be entitled under the provisions of the Code to the examination of such witnesses. In fine, learned Sessions Judge found no merit in these petitions of the accused persons and accordingly he dismissed both the petitions. ( 2 ) IN this revisional application this order has been under challenge on the ground that the order of the Court below suffers from error and illegality. According to the revisional applicants charge should not have been framed against them without the prosecution having supplied to them the documents relied upon by it or without the defence being given proper hearing on the question of framing of charge. As a result, right of the accused persons conferred under Art. 21 of the Constitution and also the principle of natural justice have been violated and hence they have filed this revisional application for setting aside the impugned order of the Court below. ( 3 ) IT is the contention of the revisional applicants that the findings of the learned Sessions Judge that since charge has already been framed against the accused under the provisions of the Cr. P. C. , he has no jurisdiction to rehear that question again or review that order framing charge against them. ( 3 ) IT is the contention of the revisional applicants that the findings of the learned Sessions Judge that since charge has already been framed against the accused under the provisions of the Cr. P. C. , he has no jurisdiction to rehear that question again or review that order framing charge against them. The learned Advocate for the revisional applicant has relied upon a decision as reported in 1987 Cri LJ 584 (Bombay High Court ). In this single Bench decision of Bombay High Court it has been held that the accused is entitled to ask for discharge from the prosecution at any stage and there is no time limit for filing such an application since the accused is not guilty, unless he is proved to be so and if he is able to point out before the commencement of trial that he has been falsely implicated and involved in the trial although there is no prima facie case against them, he is at liberty to ask for discharge. On a perusal of this judgment I find that it cannot be made applicable to our present case, inasmuch as the facts and circumstances under which such a verdict was pronounced are not present in our instant case. In this case under reference, what happened, at the time of framing of charges the Advocate appearing on behalf of the accused-petitioner was not present at all and hence there had been no opportunity for his counsel to argue on behalf of him and moreover police papers including the charge-sheet did not disclose any sufficient grounds for proceeding against him. Such conditions are not existing in our present case. Here, as the record shows, the counsel for the accused-applicant was present at the time of hearing on the question of framing of charge and after a full-fledged hearing of the arguments of both sides as also perusal of the documents placed before the Court by the investigating agency under S. 173, Cr. P. C. the Court being satisfied as to the making out of a prima facie case in support of the prosecution allegations framed the charge. In such a case the defence cannot claim any rehearing on the question of framing of charge after it has already been framed by the same Court. P. C. the Court being satisfied as to the making out of a prima facie case in support of the prosecution allegations framed the charge. In such a case the defence cannot claim any rehearing on the question of framing of charge after it has already been framed by the same Court. Similarly, it will not be permissible under the law for the defence to seek for any review of that order framing charge by the same Court. The well settled principle in this regard is that once the charge is framed there cannot be any scope of passing an order of discharge of the accused persons under the provisions of the procedural law. The remedy in such an exigency is to be found in seeking for an order of acquittal of the accused after observing the prescribed procedure i. e. , taking of evidence, examination of the accused, hearing of arguments etc. Secondly, as regards the contention of the applicant that the prosecution withheld certain documents which would have proved the non-involvement of the accused persons in the crime it has to be observed that as per the provisions of the Cr. P. C. , namely S. 207, the prosecution cannot be compelled to produce any document and it is incumbent on its part to supply copies to the defence of such documents only on which they propose to rely. The remedy of the defence in this respect lies in the provisions of the Code enabling it to call for the same during the trial of the case and get the benefit of presumptive value in the event of failure of the prosecution to produce any particular document which is supposed to be in its possession. That is to say, if it is found at the time of trial that any particular document which the prosecution is in possession of but is withholding, then the defence will certainly be entitled to get the benefit of an adverse presumption being drawn against the prosecution. But that does not mean that at the stage of framing of charge such presumptions will be available to the defence. It is well settled principle that in the matter of framing of charge under S. 228, Cr. But that does not mean that at the stage of framing of charge such presumptions will be available to the defence. It is well settled principle that in the matter of framing of charge under S. 228, Cr. P. C. the test is whether the materials on record, if unrebutted, makes a conviction reasonably possible and at this stage of framing of charge even a very strong suspicion founded on the materials before the Court may justify the framing of charge provided that the Court is satisfied that there is a prima facie case against the accused made out from the materials placed before it; but the standard of test and judgment which is to be finally applied before recording a finding of guilt is certainly not to be expected during the stage of framing of charge. The Sessions Judge is not to weigh evidence in a sensitive balance and the scrutiny as needed in trial need not be applied at this stage. It is not permissible at this stage of framing of charge on the part of the Judge or Magistrate in a case based on police report to summon witnesses and examine them or to call for documents not relied upon by the prosecution at the sweet will of the defence. The Judge or the Magistrate will be confined within the compass of the records of the case and the documents submitted by the prosecution for the purpose of ascertaining whether there is sufficient ground for proceeding against the accused. If he has to examine witnesses at the instance of the defence or call for and consider documents as requisitioned by the defence at this stage, then that will be tantamount to the holding of trial for all practical purposes and the letter and spirit behind the S. 227 or S. 228 will be given a total burial and a trend contrary to the intention of the legislature will be set in. ( 4 ) IN the State of Bihar v. Ramesh Singh, reported in AIR 1977 SC 2018 : (1977 Cri LJ 1606) the Apex Court held that at this stage the Court is not to see whether there was sufficient ground for conviction of the accused or whether the trial was sure to end in his conviction. ( 4 ) IN the State of Bihar v. Ramesh Singh, reported in AIR 1977 SC 2018 : (1977 Cri LJ 1606) the Apex Court held that at this stage the Court is not to see whether there was sufficient ground for conviction of the accused or whether the trial was sure to end in his conviction. It further observed that strong suspicion against the accused, if the matter remained in the region of suspicion, could not take the place of proof of his guilt at the conclusion of trial, but at the initial stage if there was strong suspicion which led the Court to think that there was ground for presuming that the accused had committed an offence, then it was not open to the Court to say that there was no sufficient ground for proceeding against the accused. ( 5 ) AS to the question what kind of materials should be taken into consideration by a Judge for the purpose of framing charge against an accused under S. 228 or discharging him under S. 227 of the Code the law has not left it to the unbridled discretion or sweet will of the Court, but it has expressly set the limits within which it has to confine the exercise of its discretion, namely, "the record of the case and the documents submitted therewith". This expression is very important. It signifies the documents as referred to under S. 173 (5), Cr. P. C. , i. e. , all documents on which the prosecution proposes to rely and the statements under S. 161, Cr. P. C. of all the persons whom the prosecution proposes to examine as its witnesses. The provisions of S. 207 make this interpretation more clear. A Judge at this stage is thus not in a position to look into any documents or examine any witness as per the prayer of the defence going beyond this framework. Under S. 207 the Court has been given the duty to arrange for supply to the defence copies of only such documents as are relied upon by the prosecution, for example, statements recorded under S. 161, Cr. P. C. of persons whom the prosecution proposes to examine as its witnesses and documents forwarded to the Magistrate by the investigating agency under S. 173 (5) of the Code. P. C. of persons whom the prosecution proposes to examine as its witnesses and documents forwarded to the Magistrate by the investigating agency under S. 173 (5) of the Code. So the prosecution cannot be compelled to furnish any statement allegedly recorded by the Investigating Police Officer of any person whom it does not propose to examine as a witness or any document which does not form part of the Bench of documents forwarded to the Magistrate under S. 173 (5 ). The question raised by the learned Advocate for the revisional applicant to the effect that had those papers been produced and take into consideration by the Court at the time of consideration of the question of framing of charge, then charge might not have been framed at all and the accused persons might have been discharged cannot be raised at all in view of the limited scope provided under S. 227 or 228 for the purpose of framing of charge against or discharging the accused. As we have seen, the language of this sections are quite clear and unambiguous and to consider any document filed by the defence or to examine any witness as desired by the defence will be clearly unwarranted and in effect it will mean placing the cart before the horse. The Code has prescribed suitable procedure for accommodating the defence by giving it opportunity to adduce its evidence either oral or documentary at the appropriate stage, but if that right or opportunity is allowed to be exercised by the defence at this initial stage of framing of charge then such a procedure will certainly be prematured and vitiated by illegality. ( 6 ) THE power granted under S. 311 to a Court for summoning a witness or examining him is not to be exercised at this stage of framing of charge. The expression "at any stage" is to be interpreted with reference to the context of the provisions of S. 227 discussed above this expression cannot be taken to mean that for the purpose of considering the question whether charge under S. 228, Cr. P. C. against an accused in a police case should be framed or not such examination of a witness is contemplated. Otherwise, the whole concept of S. 227 or 228 would have been a farce. P. C. against an accused in a police case should be framed or not such examination of a witness is contemplated. Otherwise, the whole concept of S. 227 or 228 would have been a farce. In a single Bench judgment of Bombay High Court in Sopan Namdeo Hadke v. State of Maharashtra, reported in 1985 Cri LJ 1642 it was held that the document referred to in S. 227 de hors the word "record" have got to be restricted meaning referable only to those documents which find mention in Ss. 173, 207 and 209 of the Code and the amalgam of this provisions and feature would make it abundantly clear that is no warrant in law in the procedure under which the Sessions Court can consider any other material or document for the purpose of framing of charge or even for the purpose of discharging the accused. It has been further observed in this decision that under procedural law the accused does not get a right to invite the Court to consider any additional material then the one collected by the police lodged with the Magistrate and forwarded to the Court of Sessions on which the prosecution wants to rely for the purpose of getting an order of discharge. In fine, it has to be held that the prayer of the defence calling for any documents or summoning any person for being examined as a witness at this initial stage when the question of framing of charge has to be considered by the trial Court is totally misconceived. Such a prayer will be relevant for being considered at an appropriate and subsequent stage during the trial of the accused persons. ( 7 ) IN view of these reasons I do not find any fault in the order passed by the Court below rejecting the petitions of the accused persons for calling for certain documents or their petition under S. 311 for summoning certain persons as witnesses and examining them for the purpose of considering the question of their proposed discharge. In my opinion, since the charge was framed against the accused persons after consideration of the documents under S. 173, Cr. In my opinion, since the charge was framed against the accused persons after consideration of the documents under S. 173, Cr. P. C. , that is, the documents on which the prosecution proposed to rely and after hearing the learned counsel for the defence at length and after the Court was satisfied that the said documents prima facie made out a case in support of the prosecution charge, the order under which such charges were framed against the accused cannot be put into question so far as its legality is concerned. The law of procedure has made sufficient provisions to accommodate the defence which will be in a position to make such a prayer before the Court for examining the witnesses or admitting into evidence the documents as mentioned in its petition in question at the appropriate time and stage during the trial. At this stage such a petition appears to be premature and unacceptable under the law. ( 8 ) IN the result, the revisional application appears to be devoid of any merit and accordingly the same is dismissed. ( 9 ) LET the lower Court records go down to the Court below forthwith so that the trial may be commenced without any further delay. Application dismissed.