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2002 DIGILAW 490 (CAL)

SEVAK GHOSH v. STATE OF WEST BENGAL

2002-07-26

DEBIPRASAD SENGUPTA

body2002
D. P. SENGUPTA, J. ( 1 ) THE present revisional application has been directed against an order dated 20. 5. 2002 passed by the learned Judge, 1st Special Court, Birbhum at Suri in Special Court Case No. 1 of 2002 thereby framing charge against the petitioner under section 409 of the Indian Penal Code. ( 2 ) FROM the impugned order it appears that on 20. 5. 2002 the aforesaid case was taken up by the learned Judge for consideration of charge. The accused was present in Court. Learned lawyer for the accused as also the learned Public Prosecutor were also present in Court. The learned Judge perused the case diary and other materials on record. The learned Judge also heard the learned advocate of the defence as also learned Public Prosecutor and then on being satisfied that there was a prima facie case against the accused person, framed charge under section 409 IPC. Schedule of dates for recording the evidence of PWs was also fixed on and from 19. 8. 2002 to 26. 8. 2002. ( 3 ) THE main ground on which the aforesaid order has been challenged is that the order of framing of charge is very cryptic and no reason has been assigned by the learned Judge for framing of charge against the petitioner. In other words, according to the petitioner's learned advocate, the impugned order does not indicate that the learned Judge applied his judicial mind in framing such charge against the accused petitioner. ( 4 ) THE main point which is to be decided in the present application is whether at the stage of framing of charge there is any legal requirement that the learned Judge should pass an order specifying the reasons for framing such charge. ( 5 ) MR. Bose, learned advocate appearing for the petitioner submits that the impugned order is very cryptic and it does not indicate that the learned Judge at all applied his judicial mind to the materials placed before him. It is very much necessary that the learned Judge in his order of framing charge should record the submission made by both the parties and also the reasons for his being satisfied regarding the prima facie case. ( 6 ) IN support of his contention Mr. Bose relies on a judgment of the Hon'ble Supreme Court reported in AIR 1972 SC 545 (Century Spinning Mfg. Co. ( 6 ) IN support of his contention Mr. Bose relies on a judgment of the Hon'ble Supreme Court reported in AIR 1972 SC 545 (Century Spinning Mfg. Co. v. State of Maharashtra ). Mr. Bose preferring to the said Three-Judge Bench decision of the Hon'ble Apex Court brings to the notice of this Court paragraph 16 of the said judgment, which is as follows: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 or on any other recognized principle of law. The order framing the charges does substantially affect the persons liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting 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 on 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 of the prosecution. ( 7 ) FROM a reading of the said judgment it appears that the appeals were preferred before the Hon'ble Supreme Court against the order of the learned single Judge of Bombay High Court setting aside an order of discharge passed by the Chief Presidency Magistrate, Bombay. The learned Magistrate after considering all the materials placed before him as also relevant orders and Notifications, considered the charge to be groundless and accordingly he discharged some of the accused persons. The High Court did not agree with the order of discharge and observed that the trial Court was not called upon at the initial stage of the proceeding to decide finally whether on a true construction of the notification, the circular letter and the correspondence, there would be an exemption from the operation of the Control Order and there would be no offence at all. Such questions, according to the High Court, required a full argument at the hearing of the case, after the framing of the charge. The Hon'ble Supreme Court after discussion the meaning and scope of section 251a Cr. Such questions, according to the High Court, required a full argument at the hearing of the case, after the framing of the charge. The Hon'ble Supreme Court after discussion the meaning and scope of section 251a Cr. PC (Old Code), set aside the order of the High Court and restored the order of discharge passed by the learned Magistrate. The Hon'ble Supreme Court after going into the merits of the case was of the view that the question principally depended on the scope and effect of the relevant notification, circular and the Deviation Order, Hon'ble Court was of the view that if on these materials the Magistrate comes to the conclusion that there is no ground for presuming that the accused has committed an offence, then he can appropriately consider the charge to be groundless and discharge the accused. ( 8 ) A perusal of the aforesaid judgment makes it clear that the point which fell for consideration before the Hon'ble Supreme Court in the said judgment is quite different from the present case. In the present case the only grievance of the petitioner is that the learned trial Judge has not recorded any reason in his order framing charge against the accused. It has not been argued by the petitioner's learned advocate that the materials placed before the learned Judge was not sufficient for framing of charge. So, this Court has got no scope to go into the merits of the case. The only point to be decided in this application is whether the learned Judge, Special Court has committed any wrong in not assigning any reason in his order of framing charge. In the judgment referred to above the point which fell for decision was whether the learned Magistrate was justified in discharging the accused under section 251a of Criminal Procedure Code (Old Code) on the basis of the materials placed before him and whether the High Court was justified in setting aside the order of discharge passed by the learned Magistrate on the ground that the learned Magistrate should not have taken into consideration such materials at the initial stage of the proceeding while recording an order of discharge. The Hon'ble Supreme Court after considering the materials on record, set aside the order of the High Court and restored the order of discharge. The Hon'ble Supreme Court after considering the materials on record, set aside the order of the High Court and restored the order of discharge. While deciding the aforesaid case the Hon'ble Supreme Court made observation in paragraph 16 of the judgment as quoted above. ( 9 ) THE next judgment relied upon by Mr. Bose is of a Three-Judge Bench of the Hon'ble Supreme Court reported in AIR 1977 SC 1489 (State of Karnataka v. L. Muniswamy and Ors. ). In the said judgment the Hon'ble Supreme Court after quoting the provision of section 227 of the Code held as follows:it is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the Superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. ( 10 ) IT was further held by the Hon'ble Supreme Court that in exercise of power under section 482 of the Code the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. It was held that since there was no material on record to come to the conclusion that the accused was connected with the incident leading to the prosecution, the High Court was justified in holding that for meeting the ends of justice the proceeding against the accused persons ought to be quashed. ( 11 ) THE observation of the Hon'ble Supreme Court in the judgment reported in AIR 1972 SC 545 (Century Spinning Mfg. Co. ( 11 ) THE observation of the Hon'ble Supreme Court in the judgment reported in AIR 1972 SC 545 (Century Spinning Mfg. Co. v. State of Maharashtra) was that the order framing a charge affects the person's liberty substantially and therefore it is the duty of the Court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face the trial. ( 12 ) IN the present case it cannot be said that the learned Judge passed the impugned order framing charge against the accused petitioner without applying his judicial mind or at the dictation of the prosecution; nor it can be said that such order was passed without giving any opportunity of hearing to the accused or without going through the materials collected by the investigating agency. The learned Judge after considering the materials on record and after hearing the learned advocate for the defence as also the Public Prosecutor in charge of the case, framed charge against the petitioner/accused on being satisfied regarding the prima facie case. It is also evident from the impugned order that after the charge was framed, the same was read over and explained to him and the accused petitioner pleaded not guilty and claimed to be tried. ( 13 ) THE main concern of the Court should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts which were sought to be proved against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the present case, where the accused was being defended by a lawyer and was given a full opportunity of hearing, it can be said that he was satisfied and knew what he was being tried for and what was alleged against him. It is also noticeable that after the charge was framed the same was read over and explained to the accused petitioner, who pleaded not guilty and claimed to be tried. No objection was raised by the defence at that point of time when charge was framed. So it cannot be said that they had any grievance against such framing of charge. No objection was raised by the defence at that point of time when charge was framed. So it cannot be said that they had any grievance against such framing of charge. ( 14 ) IN deciding the present application I rely upon the following decisions of the Hon'ble Supreme Court:- ( 15 ) IN the judgment reported in 2000 C Cr. Lr. (SC) 151 (Kanti Bhadra Shah v. The State of West Bengal) it was held by the Hon'ble Supreme Court that if the Court decides to frame a charge, there is no legal requirement that it should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself prima facie shows that the trial Judge has formed his 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 an offence. It was held by the Hon'ble Apex Court in the said judgment as follows:-IT is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. In such a situation he is only required to frame a charge in writing against the accused. ? ?even in case instituted otherwise than a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from section 245. As per first sub-section of section 245, if a 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. As per sub-section (2) the Magistrate is empowered 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. In this context it is pertinent to point out that even in a trial before a Court of session, the Judge is required to record reasons only if he decides to discharge the accused. Under both sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a Court of session, the Judge is required to record reasons only if he decides to discharge the accused. But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. ( 16 ) THE aforesaid judgment of the Hon'ble Court in the case of Kanti Bhadra Shah (supra) was followed in a subsequent judgment of the Hon'ble Supreme Court reported in 2001 Cr. LJ (SC) 1723 (Smt. Om Wati and Anr. v. The State), wherein it was held that at the stage of passing the order in terms of section 227 Cr. PC the Court has merely to peruse the evidence in order to find out whether or not there is 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 Judge must proceed to frame charge in terms of section 228 Cr. PC. ( 17 ) IN another judgment of the Hon'ble Supreme Court reported in 2000 Crl. LJ 944 (State of Madhya Pradesh v. S. B. Johari and Ors.), it was held by the Hon'ble Apex Court that at the stage of framing of 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 the evidence to arrive at a conclusion that the materials produced are sufficient or not for conviction of the accuses. If the Court is satisfied that a prima facie case is made out, then charge has to be framed. ( 18 ) THE judgments referred to by Mr. Bose are not the precedents for such a proposition that at the stage of framing charge the learned Judge is required to record reasons for his being satisfied regarding the prima facie case. What is a binding precedent is explained by the Hon'ble Supreme Court in its judgment reported in AIR 1968 SC 647 (State of Orissa v. Sudhangshu Sekhar Mishra), wherein it was held by the Hon'ble Supreme Court as follows:-A decision is only an authority for what it actually decides. What is a binding precedent is explained by the Hon'ble Supreme Court in its judgment reported in AIR 1968 SC 647 (State of Orissa v. Sudhangshu Sekhar Mishra), wherein it was held by the Hon'ble Supreme Court as follows:-A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. ( 19 ) IN another judgment of the Hon'ble Supreme Court reported in AIR 1990 SC 1782 (Krishna Kumar v. Union of India) it was held by he Hon'ble Apex Court as follows:-THE doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessary involved in it. ? ?in other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. ( 20 ) IT is clear from the aforesaid two judgments that the binding precedent is the ratio of the general principle and not every observation made in the judgment. Ratio decidendi is the underlying principle. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or put at issue only is a binding precedent. ( 21 ) NOW from the two judgments referred to by Mr. Bose learned advocate of the petitioner it becomes clear that the points which fell for consideration before the Hon'ble Supreme Court in the said two judgments are quite different from that in the present case. Accordingly, I am of the view that the said two judgments and not applicable in the present case. ( 22 ) FROM a reading of the impugned order of framing of charge it is clear that the learned Judge has passed such order on proper application of mind. He had gone through the case diary, relevant papers and documents which were placed before him. ( 22 ) FROM a reading of the impugned order of framing of charge it is clear that the learned Judge has passed such order on proper application of mind. He had gone through the case diary, relevant papers and documents which were placed before him. The learned Judge after hearing the learned advocate of the defence as also the Public Prosecutor in charge and on being satisfied regarding the prima facie case, framed charge against the accuses. In such circumstances, it cannot be said that such order was passed by the learned Judge without application of his judicial mind. Even after framing of charge the same was read over and explained to him, to which he pleaded not guilty. ( 23 ) IN view of the discussions made above, I am of the view that the impugned order does not suffer from any illegality and I do not find any reason to interfere with the same. The present application accordingly fails and the same is dismissed. It appears that schedule of dates has been fixed on and from 19. 8. 2002 for recording evidence. So, the learned trial Judge is directed to proceed with the trial and to conclude the same with utmost expedition. Application dismissed.