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2001 DIGILAW 273 (HP)

VINAY KUMAR BAWA v. STATE OF H. P.

2001-10-05

R.L.KHURANA

body2001
JUDGMENT R.L. Khurana, J.—The petitioner, Vinay Kumar, stands charged by the learned Judicial Magistrate 1st Class (I), Dharamsala as under:— “That in the year 1989 you accused in connivance with the bank officials and other accused dishonestly induces the bank authorities to deliver loan money by affixing your thumb impressions being guaranty of different loanees to deliver the money to your self, and prepared forged receipts, medical certificates and thereby you cheated the bank and committed an offence under Section 420 of the Indian Penal Code and within my cognizance. Secondly in the same year you forged a document namely loan cases of Sudesh Kumar, Nand Lal and Heera Lal by affixing your thumb impression in the loan papers in place of other persons. You also prepared forged document by giving receipts which created loss to the bank. You accused also prepared forged medical certificates of Cows in loan cases of Kailasho Devi, Ashok Kumar and Changu Ram to receive money/moveable property and thereby committed an offence under Section 467 of the Indian Penal Code and within my cognizance. Thirdly in the same year you committed forgery on the document of loan cases of different persons who never appeared in the bank and used for cheating the bank to receipt/valuable security and thereby you committed an offence under Section 468 of the Indian Penal Code and within my cognizance. Fourthly in the same year you accused dishonestly uses as genuine the document of loan cases of different person which you know to be forged documents and thereby you committed an offence under Section 471 of the Indian Penal Code and within my cognizance. And I hereby direct you to be tried on the said charge." 2. Feeling aggrieved, the petitioner is before this Court by way of the present revision petition assailing the charges framed against him under Section 240 Code of Criminal Procedure, 1973. 3. As per the prosecution case in about 17 cases of loans disbursement by the Himachal Gramin Bank for purchase of cattle, the same were found to have been disbursed in favour of persons who were found to have never resided at the addresses mentioned in the various loan documents. On the basis of the report made by the Bank a case came to be registered with Police Station (Enforcement), North Zone, Dharamsala vide FIR No. 24 of 1989. On the basis of the report made by the Bank a case came to be registered with Police Station (Enforcement), North Zone, Dharamsala vide FIR No. 24 of 1989. During the course of registration, it was revealed that the petitioner in connivance with the certain Bank officials and others had drawn loans from the Bank fraudulently on the basis of forged documents and had thus misappropriated the Bank money. After necessary investigation, the challan was put in court sometime in November, 1998 against the petitioner and five others. Two of the accused, namely, Ram Parasad and Banwari Lai have been declared proclaimed offenders while one accused, that is, Sita Ram has since died. The case is thus pending against the petitioner and two others, that is, proforma respondents 2 ar«J 3. All the three stand charged for the same offences and in similar terms. 4. In assailing the charge framed against the petitioner, it has been contended that there is not even an iota of evidence against the petitioner to enable the learned Magistrate to form an opinion that there exists a ground for presuming that the accused has committed the offences charged against him. The charges framed lack material particulars and are vague, sweeping and general in nature. There is even non-application of mind by the learned Magistrate to the material placed on record. 5. It is by now well settled that no reasons are required to be recorded when the charges are framed against the accused persons. At the stage of framing of charge, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that a prima facie case is made out against the accused, the court has to proceed to frame charge against the accused either in terms of Section 228 or Section 240, Code of Criminal Procedure. It is only in a case where it is shown that evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, cannot show that the accused committed the crime that there and then alone the Court can discharge the accused. It is only in a case where it is shown that evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence, cannot show that the accused committed the crime that there and then alone the Court can discharge the accused. At the stage of framing charge, the Court is not required to enter into meticulous consideration of the evidence and material placed before it. 6. Dealing with the scope of Sections 227 and 228 of the Code of Criminal Procedure, which provisions are pari materia to the provisions contained in Sections 239 and 240, Code of Criminal Procedure, and the limitations imposed upon the Court at the initial stage of framing the charge, the Honble Apex Court in State of Bihar v. Ramesh Singh, (1977) 4 Supreme Court Cases 39, has held :— "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 finding regarding the guilt or 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. 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 committed an offence then it is not open to the Court to say that there is 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 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 accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the 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." 7. The apex Court in Supdt. and Remembrancer of Legal Affairs West Bengal v. Anil Kumar Bhunja and others, (1979) 4 SCC 274, has reminded the courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The apex Court in Supdt. and Remembrancer of Legal Affairs West Bengal v. Anil Kumar Bhunja and others, (1979) 4 SCC 274, has reminded the courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The Court has to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the evidence which the prosecution proposes to adduce are-not to be meticulously judged. The standard of 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 framing of charge. Even on the basis of a strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of the factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by him. 8. In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another, (1989) SCC 715, the Honble Apex Court cautioned the High Courts to be loath in interfering at the stage of framing of charges against the accused. It was held that self restraint on the part of the High Court should be the rule unless there is glaring injustice staring the court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed. 9. Again in Om Wati (Smt.) and another v. State, through Delhi Administration and others, (2001) 4 SCC 333, the apex Court has reminded the High Courts as under:— "We would again remind the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law.” 10. This Court has gone through the record of the case made available by the learned Counsel for the petitioner being the copies supplied to the petitioner under Section 207, Code of Criminal Procedure. 11. In the instant case, it cannot be said that it is a case of no evidence at all. There is no ground to interfere with the charges framed by the learned Magistrate against the petitioner. It would neither be safe nor proper, at this stage, to deprive the prosecution in proving its case on the basis of evidence which it may seek to produce. The material brought before the learned Magistrate raises a strong suspicion on the basis of which a presumptive opinion has been rightly formed regarding the petitioner being involved in the commission of the offences charged against him. 12. In so far as the question of defect or error in the framing or form of charge is concerned, suffice to say, that the charges cannot be quashed /set aside simply on this ground. 13. Section 215, Code of Criminal Procedure, which deals with "Effect .of Errors" in stating the charge, reads : "No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." 14. The question whether due to error in stating the charge accused was misled or that a failure of justice has occasioned can only be gone into after the prosecution has led its evidence and the accused has led his defence. Besides, Section 216, Code of Criminal Procedure, confers I power on the Court to alter or add to any charge at any time before the judgment is pronounced. Therefore, if there is any error or omission in stating the charge the learned trial Court can proceed in the matter in accordance with the provisions contained in Chapter XVII of the Code of Criminal Procedure. 15. For the foregoing reasons, the present revision petition is dismissed. Therefore, if there is any error or omission in stating the charge the learned trial Court can proceed in the matter in accordance with the provisions contained in Chapter XVII of the Code of Criminal Procedure. 15. For the foregoing reasons, the present revision petition is dismissed. It may, however, be clarified that nothing hereinabove stated shall be construed as an expression of opinion over the merits of the case and the learned trial Court shall proceed with the case uninfluenced by the observations made by this Court, which are purely for the purpose of disposal of the present revision petition. Interim order dated 16.7.2001 passed in Cr.M.P No. 259 of 2001, shall stand vacated, Let a copy of this order be sent to the learned trial Court for information. Revision petition dismissed.