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2001 DIGILAW 481 (KER)

Kurian Varkey @ Joshy v. Bose Abraham

2001-09-05

T.M.HASSAN PILLAI

body2001
Judgment :- T.M.Hassan Pillai, J. 1. Heard 2. The order passed by the learned Judicial First Class Magistrate, Erattupetta framing charge against the revision petitioner for the commission of offences punishable under Sections 420 and 488 IPC is under attack in this revision. 3. Learned counsel for the revision petitioner argued strenuously that the magistrate is not justified in framing charge against the revision petitioner and total dearth of material for presuming that accused (revision petitioner) has committed the offence is the ground projected before me by the learned counsel to call in question the correctness, legality and propriety of the order impugned. He submitted that evidence given by PW3, who is the accountant of the drawee bank clearly proved that no offence was committed by the revision petitioner. 4. Per contra, learned counsel for the first respondent submitted that in view of the legal principle enunciated by the Supreme Court recently in Om Wati v. State 2001 AIR(SC) 1507, 2001 (107) CRLJ 1723, 2001 (4) SCC 333, 2001 (2) SLT 796, 2001 (2) Crimes 59, 2001 (2) CCR 43, 2001 SCC(Cr) 685, 2001 (2) Scale 505, 2001 (2) SCJ 528, 2001 (2) SCR 482, 2001 (3) JT 585, 2001 (2) Supreme 423, 2001 (2) RecentCR 255, 2001 (4) SRJ 308 the trial Court while framing charge need not record the reason for framing charge and the Magistrate is only to satisfy himself on the basis of the materials placed before him whether a prima facie case is made out or not. Counsel argued that at that stage Magistrate is not required to analyse the evidence meticulously so as to decide its worth or credibility. 5. The settled legal position is 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 can frame charge against him for committing that offence. No one can also quarrel with the legal proposition that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. No one can also quarrel with the legal proposition that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. Considering Sections 227, 228, 239, 240 and 245 Cr.P.C. Apex Court observed thus : "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 materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage" (See State of Maharashtra v. Som Nath thapa, 1996 SCC(Crl) 820)." 6. Before making the above quoted observation the Supreme Court noted the view expressed in State of Karnataka v. L.Muniswamy 1977 SCC(Crl) 404) that at the stage of framing the charge court has to apply its mind to the question whether or not there is ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty. Substantially, the need for proper consideration of materials warranting such order was emphasized. Supreme Court before adverting to what was stated in Antulay's case also considered what was stated in regard to framing of charge in Stree Atyachar Virodhi Parishad v. Dilip Nuthumal Chordia 1989 (1) SCC 715, 1989 (1) Crimes 443, 1989 CRLR 292, 1989 SCC(Cr) 285, 1989 MhLJ 462, 1989 CAR 61, 1989 (1) DMC 390, 1989 (1) Scale 330, 1989 (1) UJ 610, 1989 (1) SCR 560, 1989 (1) HLR 635, 1989 (1) JT 247, 1989 MahLJ 462, 1989 CrLR(SC) 292, 1989 MLR 268) which was quoted with approval in Paragraph 78 of State of W.B. v. Mohd. Khalid 1995 SCC(Cri) 226] (what was stated 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 and no more is required to be inquired into). Khalid 1995 SCC(Cri) 226] (what was stated 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 and no more is required to be inquired into). Supreme Court also noted the opinion of Bhagwati, CJ expressed after noting the difference in the language of the three pairs of sections in Antulay case 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. 7. Very recently Supreme Court has held in - State by Central Bureau of Investigation v. Bangarappa 2001 AIR(SC) 222, 2001 (107) CRLJ 111, 2001 (1) SCC 369, 2000 (8) SLT 331, 2000 (4) Crimes 276, 2000 (4) CCR 271B, 2001 SCC(Cr) 152, 2001 (1) JCC 3, 2000 (7) Scale 557, 2001 (1) SCJ 37, 2000 (S4) SCR 726, 2000 (S3) JT 29, 2000 (7) Supreme 633, 2000 (4) RecentCR 818, 2000 (10) SRJ 276) that time and again apex court has pointed out that at the stage of framing charge the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. Apex Court observed further that the limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further. Apex Court observed further that the limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further. It is not necessary for the court to record the reason when the court decides to frame charge and this legal principle is laid down by the Supreme Court in Kanti Bhadra Shah v. State of W.B. 2000 AIR(SC) 522, 2000 (106) CRLJ 746, 2000 (1) SCC 722, 2000 (1) SLT 133, 2000 (1) Crimes 96, 2000 (1) CCR 72, 2000 SCC(Cr) 303, 2000 (1) JCC 100, 2000 (1) Scale 19, 2000 (3) SCJ 77, 2000 (1) KLT 795, 2000 (1) JT 13, 2000 (1) Supreme 6, 2000 (1) RecentCR 407, 2000 (2) SRJ 112 The Supreme Court extracted the relevant observations from that decision (SCC Head Note) in State by Central Bureau of Investigation v. S.Bangarappa 2001 AIR(SC) 222, 2001 (107) CRLJ 111, 2001 (1) SCC 369, 2000 (8) SLT 331, 2000 (4) Crimes 276, 2000 (4) CCR 271B, 2001 SCC(Cr) 152, 2001 (1) JCC 3, 2000 (7) Scale 557, 2001 (1) SCJ 37, 2000 (S4) SCR 726, 2000 (S3) JT 29, 2000 (7) Supreme 633, 2000 (4) RecentCR 818, 2000 (10) SRJ 276: If the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion upon considering the police report / and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned". 8. In cases instituted otherwise than on a police report if the magistrate decides to discharge the accused he is required to write an order showing the reasons. This is clear from S.245 Cr.P.C. If the Magistrate after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused (Sub-section (1) of Sec. 245 says so). This is clear from S.245 Cr.P.C. If the Magistrate after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused (Sub-section (1) of Sec. 245 says so). The Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless (Sub-section (2) of Section 245 empowers the magistrate to discharge the accused at any previous stage of the case if he considers the charge to be groundless). Under both sub-sections he is obliged to record his reasons for doing so. 9. In K.Ramakrishna and Others v. State of Bihar and Another (2001 SC (Cri) 27) Supreme Court has held that the trial court under Section 239 and the High Court under S.482 of the Code of Criminal Procedure is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. 10. The legal principles that are to be kept in view by a court at the stage at which the court is required to consider the question of framing charge are to be summarized thus. If there is ground for presuming that accused has committed the offence a court can say justifiably that a prima facie case against him exists. In other words, on the basis of the materials on record, court could come to the conclusion that commission of the offence is probable consequence, a case for framing charge exists. At the stage of framing of charge probative value of the materials on record cannot be gone into and the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. When charge is framed by a court, it is a prima facie order that the trial judge has formed an opinion upon considering the police report/ and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. It is not the legal requirement that the trial court should write an order showing the reasons for framing the charge. 11. It is not the legal requirement that the trial court should write an order showing the reasons for framing the charge. 11. Learned Counsel for the first respondent made available the copy of the complaint and also copies of the depositions of the witnesses examined on the side of the first respondent. I have kept in view the above laid down principles and considered the materials placed before me. After going through the complaint and the evidence led on the side of the first respondent in support of his case, I am of the view that the learned Magistrate is well justified in framing charge against the revision petitioner and the reason for holding so is that on the basis of materials on record a court could come to the conclusion that commission of the offence is the probable consequence. Revision is dismissed.