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2001 DIGILAW 713 (KER)

Surendranatha Menon v. State of Kerala

2001-12-04

T.M.HASSAN PILLAI

body2001
Judgment :- T.M. Hassan Pillai, J. Quashment of the charge sheet laid in Crime No. 250 of 1996 registered by the Mala Police under Section 420 IPC is sought for in this Crl.M.C. filed under Section 482 Cr.P.C. When this Crl.M.C.came up for hearing today counsel for the petitioner submitted that the petitioner will be satisfied if a direction is given to the learned Magistrate (Judicial I Class Magistrate, Chalakudy) to consider all the contentions raised by him Crl.M.C. at the time of considering the qusestion whether charge is to be framed against him or not. 2. I need not state here the precise accusation made against the petitoner in the challan laid by the police. 3. Supreme court in Satish Mehra v. Delhi Administration (1996 SCC (Cri) 1104 held that under Section 239 Cr. P.C. which deals with the trail of warrant cases on police report, 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. "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 suffest that no such material shall be looked into by the court at that stage." Recently in Om Prakash Sharma v. CBI, Delhi (2000 SCC (Cri) 1014) Supreme Court held that " if the accused could produce any relevant material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/ public time." 4. There appears to be apparent conflict between the legal principles enunciated by the Supreme court in Satish Mehra's Case (1996 SCC (Cri) 1104) and in State of Anti- Corruption Bureau v. Suryaprakasam (1999 SCC (Cri) 373) wherein Supreme Court observed that, "without meaning any disrespect to the High Court, we are constrained to say that the settled law is just the reverse of what the High Court has observed in the above- quoted passage as would be evident from even a cursory reading of Section 239 and 240 Cr. P.C., which admittedly govern the case of the respondent. P.C., which admittedly govern the case of the respondent. According to the above sections, at the time of framing of a charge what the trial court is required to, and can, consider are only the police report referred to under Sections 174 Cr.P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. Of course, at that stage the accused may be examined but that is a prerogative of the court only. Though in view of the clear language of the above sections, no authority need be cited for the above proposition still we may refer to the judgment of this court in Minakshi Bala v. Sudhir Kumar(1994 SCC (Cri) 1181 ( to which one of us was a party) for therein, the scope and ambit of the above sections came up for consideration and it was held:" "6. Having regard to the fact that the offences, for which charge-sheet was submitted in the instant case and cognizance taken, were triable as a warrant case the Magistrate was to proceed in accordance with Sections 239 and 240 of the Code at the time of framing of the charges. Under the above sections, the Magistrate is first required to consider the police report and the documents sent with it under Section 173 Cr.P.C. and examine the accused,, if he thinks necessary, and give an opportunity to the prosecution and the accused of being heard. If on such consideration, examination and hearing the Magistrate finds the charge groundless he has to discharge the accused in terms of Section 239 Cr.P.C.; conversely, if he finds that there is ground for presuming that the accused has committed an offence trail by him he has to frame a charge in terms of Section 240 Cr.P.C." 5. In State of J & K v. Sudarshan Chakkar and another (1995 SCC (Crl) 664) the Supreme Court held that in a case instituted upon a police report, the court is required at the time of framing of the charge, to confine its attention to documents referred to under S.173 of the Code of Criminal Procedure only. 6. A three Judge Bench of the Supreme court had occasion to consider Sections 227,228,239,240 and 245 Cr. 6. A three Judge Bench of the Supreme court had occasion to consider Sections 227,228,239,240 and 245 Cr. P.C. in State of Maharastra v. Som Nath Thapa (1996 SCC (Cri)820) and the Supreme Court held that, " 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 prime facie case against him exists, and so, frame a charge against him for committing that offence". Enunciating the law the Supreme Court further held that if the Court were to think that the accused might have committed the offence, it can frame charge, though for conviction the conclusion is required to be that the accused has committed the offend. " It is apparent that at the stage of framing charge, the probative value of the materials on record cannot be gone into, the materials brought by the prosecution has to be accepted as true at that stage." 7. In Niranjan Singh K.S. Punjab v. Jitendra Bhimaraj Bijaya (1991 SCC (Cri) 47) the supreme Court considered the scope of sections 227 and 228 Cr. P.C. and observed thus: "Section 227 of the Code reads as under: "227. 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." Under this section a duty is cast on the Judge to apply his mind to the material on record and if on examination of the record he does not find sufficient ground for proceeding against the accused, he must discharge him. On the other hand if after such consideration and hearing he is satisfied that a prima facie case is made out against the accused, he must proceed to frame a charge as required by Section 228 of the Code. Once the charge is framed the trial must ordinarily end in the conviction of acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code. 5. Once the charge is framed the trial must ordinarily end in the conviction of acquittal of the accused. This is in brief the scheme of Sections 225 to 235 of the Code. 5. Section 227, introduced for the first time in the new code, confers a special power on the judge to discharge an accused at the threshold if 'upon consideration' of the record and documents he considers 'that there is not sufficient ground' for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure. 6.The next question is what is the scope and ambit of the 'consideration' by the trail court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for frame the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charged and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. All that he is called upon to consider is whether there is sufficient ground to frame the charged and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh (1977 SCC (Cri) 533) this Court observe that at the initial stage of the framing of a charge if there is a strong suspicion evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trail. In Union of India v. Prafulla Kumar Samal (1979 SCC (Cri) 609) this court after considering the scope of Section 227 observed that the words, 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his Judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing his fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under: (SCC p.9 para 10) "(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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. (2) Where the materials placed before the court disclose graves suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial. (3) 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 adduced 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. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial". 7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979 SCC (Cri) 1038) this court observed in paragraph 18 of the judgment as under: (SCC p.279. para 18) "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 Section 227 or 228of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence". From the above discussion it seems well settled that at the Sections 227-228 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. From the above discussion it seems well settled that at the Sections 227-228 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 that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case". 8. While examining the scope of S.251 (A) sub-sections (2) and (3) of the old Code corresponding to Section 239 and 240 of the New Code Supreme Court has made the following observation in Century Spinning & Manufacturing Co.Ltd. v. State of Maharashtra ( AIR 1972 SC 545): "…….If on this material, the Court comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then it can appropriately consider the charge to be groundless and discharge the accused. The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the Section or on its Judicial interpretation on the plain language of the section or on its judicial interpretation on the plain language of the section or on its judicial interpretation or on any other recognized principle of law. The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision on the prosecution". 9. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision on the prosecution". 9. In Suresh alias Pappu Bhudharamal Kalani v. State of Maharashtra (2001 SCC (Cri) 621) the Supreme Court laid down the law thus: "9.We do not feel it necessary to repeat the discussions on the different points and the decision which have been referred to in the judgment. However we notice a few recent decisions of this court touching on the question. In the case of State of Maharashtra v. Priya Sharan Maharaj and others ( JT 1997 (4) SC 84 = 1997 (4) SCC 393), this Court referring to the case of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimaraj Bijjaya (JT 1990 (3) SC 408=1990 (4) SCC 76), held that at the stage of Sections 227 and 228 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 that initial stage to accept all that the prosecution stage as 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. 10. In the case of State of M.P. v. Mohanj Lal Soni (JT 2000 (8) SC 333)= (2000) 8 SCC 338), this Court referring to several previous decisions, held that the crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. 11. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. 11. The following observation made by the Supreme Court in K. Ramakrishna v. State of Bihar (2001 SCC (Cri) 27) is also worthy of extraction. " 4. The trial court under Section 239 and the High Court under Section 482 of the Code of Criminal Procedure is not called upon the embark upon an inquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the complainant or the prosecution and without weighing or sifting or evidence, no case is made out, the criminal proceeding instituted against the accused are required to be dropped or quashed. As observed by this court in Rajesh Bajaj v. State NCT of Delhi (1999) 3 SCC 259: 1999 SCC (Cri) 401 the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander of finest gauzes for testing the ingredients of offence with which the accused is charged. Such an endeavour may be justified during trial but not during the initial stage." 12. All the decisions cited supra except the decision rendered by the Supreme Court in State of Maharashtra v. Som Nath Thapa (1996 SCC (Cri) 820 ) and Centuary Spinning and Manufacturing company (AIR 1972 SC 525) are rendered by the two Judge Bench of the Supreme Court. Keeping in view the principle of law laid down by the Supreme Court in the above cited decisions (apparently conflicting views are expressed by the Supreme Court in some of the decisions) the learned Magistrate is directed to consider the question whether charge is to be framed against the petitioner or not. Crl. M.C. is disposed of accordingly.