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2000 DIGILAW 99 (KER)

Beevi v. Ismail

2000-02-10

T.M.HASSAN PILLAI

body2000
ORDER T.M. Hassan Pillai, J. 1. Petitioners (accused 2 and 3 in C. C. No. 131/98 on the file of the Judicial I Class Magistrate Court, Kadungalloor) were discharged by the learned Magistrate on the ground that no prima facie case was made out against them. Challan has been laid against the revision petitioners and accused Nos. 1 and 4, after conducting investigation by the Sub Inspector of Police, Kadungalloor under S.420 read with S.34 IPC. 2. First respondent filed a complaint against the accused persons before the Judicial Ist Class Magistrate Court, Kadungalloor alleging commission of offence under S.420 read with S.34 IPC for registering a case and investigation. As stated above, the police, after investigation, laid charge against the accused persons under S.420 read with S.34 IPC. Learned Magistrate, on a consideration of the materials placed before her by the prosecution, discharged accused Nos. 2 and 3 holding that no prima facie case was made out against them. 3. The order of discharge passed by the learned Magistrate was called in question by the Decided On : facto complainant before the Sessions Court, Thrissur and the learned Sessions Judge interfered with the order of discharge passed by the Magistrate and directed the Magistrate to frame charge against accused Nos. 2 and 3 also. It is against that order passed by the learned Sessions Judge the petitioners have come up before this court seeking to set aside the order exercising the powers of this court under S.401 of the Code of Criminal Procedure. 4. So, the question that is to he considered in this revision is the legality and propriety of the impugned order passed by the learned Sessions Judge. 5. For determining the question whether the order impugned is sustainable or not, I have to bear in mind the law laid down by the apex court in R. S. Nayak v. A. R. Antulay ( AIR 1986 SC 2045 ). The Apex Court has held thus: "The Code contemplates discharge of the accused by the court of Session under S.227 in a case triable by it; cases instituted upon a police report are covered by S.239 and cases instituted otherwise than on police report are dealt with in S.245. The three sections contain somewhat different provisions in regard to discharge of the accused. The three sections contain somewhat different provisions in regard to discharge of the accused. Under S.227, the; trial Judge is required to discharge the accused if he considers that there is not sufficient ground for proceeding against the accused. Obligation to discharge the accused under S.239 arises when the Magistrate considers the charge against the accused to be groundless. The power to discharge is exercisable under S.245(1) when "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 …." It is a fact that S.27 and 239 provide for discharge being ordered before recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and Oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under S.245, on the other hand, is reached only after the . Evidence referred to in S.244 has been taken. 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 S.245(1) is a preliminary one and the test of "prima facie" case has to be applied. Inspite 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." 6. In State of Karnataka v. L. Muniswamy ( 1977 (2) SCC 699 ) a three Judge Bench of the Apex Court held that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, it is the duty of the court to consider properly the materials placed before it for deciding whether the materials placed warrant an order of framing of charge. The Apex court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989 SCC Crl. As framing of charge affects a persons liberty substantially, it is the duty of the court to consider properly the materials placed before it for deciding whether the materials placed warrant an order of framing of charge. The Apex court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia (1989 SCC Crl. 285) laid down that it is in the trial, the guilt or innocence of the accused will be determined and not at the time of framing charge. The court, therefore, need not undertake an elaborate enquiry, sifting and weighing the materials. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. Apex court in State of Maharashtra v. Soni Nath Thapa (1996 SCC (Crl.) 820) considered S.227, 228, 239, 240 and 245 Cr.P.C. and the following observations made by the apex court are worthy of extraction; "28. Before adverting to what was stated Antulay case let the view expressed in State of Karnataka v. L. Muniswamy ( 1977 (2) SCC 699 : 1977 SCC (Cri) 404 : 1977 (3) SCR 113 ) be noted. Therein, Chandrachud, J. (as he then was) speaking for a three Judge Bench stated that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised. 29. What was stated in this regard in Stree Atyachar Virodhi Parishad case which was quoted with approval in para. 78 of State of W.B. v. Mohd. Khalid ( 1995 (1) SCC 684 ) is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into. 30. 78 of State of W.B. v. Mohd. Khalid ( 1995 (1) SCC 684 ) is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into. 30. In Antulay case Bhagwati, C. J. opined, after noting the difference in the language of the three pairs of sections, that despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31. Let us note the meaning of the word 'presume'. In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence", (emphasis ours). In shorter Oxford English Dictionary it has been mentioned that in law 'presume' means 'to take as proved until evidence to the contrary is forthcoming', Stroud's Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged", (emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at p. 1007 of 1987 Edn. 32. The. Aforesaid shows that if on the basis of materials on record, a court should come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 7. It is also pertinent to quote here the observations made by the Apex Court in Satish Mehra v. Delhi Administration (1996 SCC (Cri) 1104) "9. Considerations which should weigh with the Sessions Court at this stage have been well designed by parliament through S.227 of the Code of Criminal Procedure (for short "the Code") which reads thus: "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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing". S.228 contemplates the stage after the case survives the stage envisaged in the former section. When the court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein has to be adopted. When those sections are put in juxtaposition with each other the test to be adopted becomes discernible. Is there sufficient ground for proceeding against the accused: It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is "sufficient ground for proceeding". (Vide State of Bihar v. Ramesh Singh and Supdt. ( 1977 (4) SCC 39 : 1977 SCC (Cri) 533) & Remembrancer of Legal Affairs v. Anil Kumar Bhunja ( 1979 (4) SCC 274 : 1979 SCC (Cri) 1038)). 10. (Vide State of Bihar v. Ramesh Singh and Supdt. ( 1977 (4) SCC 39 : 1977 SCC (Cri) 533) & Remembrancer of Legal Affairs v. Anil Kumar Bhunja ( 1979 (4) SCC 274 : 1979 SCC (Cri) 1038)). 10. In Alamohan Das v. State of W.B. ( AIR 1970 SC 863 : 1969 (2) SCR 520 ) Shah, J. (as he then was) has observed in the context of considering the scope of committal proceedings under S.209 of the old Code of Criminal Procedure (1898) that a Judge can sift and weigh the materials on record by seeing whether there is sufficient evidence for commitment. It is open to the court to weigh the total effect of the evidence and the documents produced to check whether there is any basic infirmity. Of course, the exercise is to find out whether a prima facie case against the accused has been made out. 11. In Union of India v. Profulla Kumar Samal ( 1979 (3) SCC 4 : 1979 SCC (Cri) 609), this court has observed that the Judge while considering the question of framing the charge 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". However, their Lordships pointed out that the test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. "By and large however if two views are equally possible and the Judge is satisfied that the evidence produced 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." At the same time the court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected or even warranted at this stage. 12. An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. S.226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. 12. An incidental question which emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. S.226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) a record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as the prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing the submissions? Should it be confined to hearing oral arguments alone? 13. Similar situation arises under S.239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage. Here the 'ground' may be any valid ground including insufficiency of evidence to prove the charge." 8. While considering S.227 and 228 Cr.P.C. the apex court made the following observations in State of Maharashtra v. Priya Sharan Maharaj (1997 SCC (Crl) 585) "8. The law on the subject is now well settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjava ( 1990 (4) SCC 76 : 1991 SCC (Cri) 47) that at S.227 and 228 stage the court is required to evaluate the material 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 may, for this limited purpose, sift the evidence as it cannot be expected even at the 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. Therefore, at the stage of framing of the charge the court has to consider the material with a view to find 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." 9. In view of the settled legal position that the test to be applied is that of prima facie case, the learned Sessions Judge was not justified in upsetting the order of the learned Magistrate holding that the learned "Magistrate ought to have noted that the question to be considered is not whether a prima facie case is made out against accused 2 and 3." The learned Sessions Judge has not correctly applied the law and I have no hesitation to state that he has misapplied the law. The observation made by the Sessions Judge finding fault with the learned Magistrate, who has understood and applied the law correctly, as if he (Sessions Judge) has stated the law correctly in the impugned order, is not justified. I am constrained to state here that it is rather pitiable and lamentable that a fairly senior Judge (Sri Basant, Sessions Judge, Thrissur) who is expected to apply the fundamental principles of criminal jurisprudence correctly, is not aware of the law laid down by the apex court in R. S. Nayak v. A. R. Antulay ( AIR 1986 SC 2045 ). In my view, the law is correctly applied by the learned Magistrate. From a careful reading of S.239 and 240 Cr.P.C. it is clear that at the time of framing of charge what the trial court is required to, and can consider, are the police report referred, to under S.173 Cr.P.C. and the documents sent with it. 10. Whether a prima facie case is made out against accused 2 and 3 (petitioners herein) is the sole question that need be considered by me. 10. Whether a prima facie case is made out against accused 2 and 3 (petitioners herein) is the sole question that need be considered by me. Learned counsel for the petitioners rightly contended that in the complaint filed by the first respondent there is no allegation against the revision petitioners that they approached the complainant (they went along with accused 1 and 4 to the house of complainant) for lending or for giving to them gold ornaments alleged to be given by him for the purpose of wearing at the time of marriage of the first accused's daughter (3rd accused) and no case is pleaded by him that any promise was made by them at the time of approaching him (complainant) for lending or giving to them gold ornaments, that the gold ornaments would be returned immediately after the marriage. It is not averred in the complaint that the de facto complainant was made to believe by the revision petitioners that the gold ornaments alleged to be given were to be given temporarily and the allegation made against the revision petitioners is that the de facto complainant brought gold ornaments to the house of the 1st accused on 15-9-1997 and all of them (accused persons) were satisfied with the design and quality of gold ornaments brought after examining them and promise was made to return the gold ornaments within two days after the marriage. There is no allegation in the complaint (no allegation made in Para.1 of the complainant) that at the time of approaching the de facto complainant for giving or lending to them gold ornaments, the revision petitioners entertained any dishonest intention not to return gold ornaments, nor has the complainant made any allegation in the complaint that on 15-9-1997 when he (complainant) brought the gold ornaments to the house of the 1st accused, the revision petitioners entertained any dishonest intention not to return the gold ornaments. However, a totally different version was given by the defacto complainant, when he was questioned by the police during the course of investigation and his improved version was that the four accused persons came to his shop and requested him to give the gold ornaments (no such case is pleaded in his complaint) and the statement of him recorded under S.161 Cr.P.C. by the police does not disclose that at that time the accused persons made any representation that they would return the gold ornaments immediately after marriage of the 3rd accused or that they entertained any dishonest intention at that time not to return the gold ornaments. In his statement recorded by the police it is also not clearly stated by the de facto complainant that when he had brought the gold ornaments to the house of the first accused, after examining the gold ornaments, the revision petitioners promised to return gold ornaments within two or three days after the marriage. There is nothing in his statement to indicate that the revision petitioners entertained any dishonest intention either at the time of their coming to his shop or at the time of giving the gold ornaments to them. Police statements of CW 2 and CW 3 are to the effect that when the gold ornaments were taken to the house of the first accused, all the accused persons were present in that house and all of them examined the gold ornaments. Their version is also that the 1st and 4th accused promised to the de facto complainant either to return the gold ornaments after the marriage or to pay the value of the gold ornaments. There is nothing in their statements to show that any representation was made by revision petitioners regarding return of the gold ornaments or to pay the value thereof. As no case is pleaded by the complainant in the written complaint that revision petitioners came along with the 1st and 4th accused to his shop or to his house and requested him to give gold ornaments to accused persons, or they at any time promised to return either the gold ornaments or the value thereof, no value can be attached to the police statement of CWs. 6 and 7 that revision petitioners along with other accused persons went to the shop of CW 1 and requested him for giving gold ornaments and promised to him to return the gold ornaments after the marriage of 3rd accused or to give the value of gold ornaments. There is nothing in the police statements of CWs 4 and 5 to connect the revision petitioners with the Crime alleged. 11. Applying the principle of law laid down by the Apex Court, I have to hold that on the basis of the materials on record, the court cannot come to a conclusion that the commission of the offence by the revision petitioners is a probable consequence and, no case to frame charge against the revision petitioners exists. Hence, the Sessions Judge was not justified in interfering with the order of the learned Magistrate discharging the revision petitioners holding that no prima facie case was made out against them. The impugned order passed by the learned Sessions Judge is not sustainable and hence it is set aside, restoring the order passed by the learned Magistrate discharging the petitioners herein. The Criminal Revision is disposed of as above.