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2002 DIGILAW 505 (CAL)

Adhir Kr. Das @ Kartick Das v. State

2002-07-30

GORACHAND DE

body2002
JUDGMENT G.C. De, J.: 1. By this application under sections 401/482 of the Code of Criminal procedure, 1973, the accused Adhir Kumar Das @ Kartick Das has prayed for quashing of the entire proceedings of the Sessions Case No. 15(1) 96, pending before the learned Additional Sessions Judge, 1st Court, Nadia, at Krishnanagar, after setting aside the order dated 15.3.1996 2. After hearing Mr. Dipak Kumar Sengupta, learned counsel for the petitioner, and Mr. Sudipto Moitra, learned Additional P.P., High Court, and on perusal of the materials on records it appears that before framing of charge in the case an application was filed on behalf of the accused/petitioner praying for his discharge mainly on the ground that no material was collected against him in course of the investigation, excepting an extra-judicial confession not backed by any confessional statement under section 164 of the Code. The learned Additional Sessions Judge, to whom the case was committed for trial after the submission of the charge-sheet, duly considered the submission made by both sides and also perused the case diary and the other materials on record and thereafter passed the impugned order on 15.3.96 rejecting the prayer for discharge. In the said prayer it was also indicated that there were sufficient materials to frame a charge against the accused under sections 302/34 of the Indian Penal Code as there was strong suspicion against them and accordingly proposed to frame a charge fixing 29.3.96 for consideration of charge. 3. Mr. Sengupta, after scanning the order passed by the learned Additional Sessions Judge contended that excepting the extra-judicial confession of a co-accused there is no other material before the trial court to justify the framing of a charge. Mr. Sengupta further analysed the legal position of such an extrajudicial confession not backed by any confessional statement recorded under section 164 of the Code and accordingly concluded that only on the basis of the said extra-judicial confession of the co-accused Avijit Mistry no charge can be framed. It is also pointed out that even-if the materials on record are accepted to be the substantive evidence, confession of the present petitioner cannot be relied upon. Accordingly, Mr. Sengupta prayed for quashing of the entire proceeding after setting aside the impugned order. 4. Mr. It is also pointed out that even-if the materials on record are accepted to be the substantive evidence, confession of the present petitioner cannot be relied upon. Accordingly, Mr. Sengupta prayed for quashing of the entire proceeding after setting aside the impugned order. 4. Mr. Moitra, on the other hand, placed reliance on the verdict of the Apex Court in the case of State of Delhi vs. Gyan Devi & Ors., JT 2000 (Suppl. 2) S.C. 635 and contended that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution, nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused person. In the said decision the Apex Court also took the view that at the stage of framing of charge the court is to examine the materials produced before it only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused person. It is also viewed that when the petition is filed by the accused under section 482 of the Code of Criminal Procedure seeking for the quashing of charge framed against them the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid the abuse of the process of the court, the charge framed against the accused needs to be quashed. 5. Mr. Moitra also placed reliance on another verdict of the Apex Court in Kanti Bhadra Shah & Anr. vs. State of West Bengal, JT 2000(1) SC 13, in support of his contention that for the purpose of framing of charge there is no legal requirement to pass a detailed order specifying the reasons as to why the charges are being framed. In this case the Apex Court also took the view that 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. In this case the Apex Court also took the view that 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. If he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try, the only requirement open for the court is to frame a charge in writing against the accused. 6. Mr. Moitra also placed reliance on the celebrated decision of the Apex Court in Superintendent & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors., AIR 1980 SC 52 :1979 Cr. L. J. 1390, in support of his contention as regards the part to be played by a trial court at the time of framing of charge. In this judgment the Apex Court took the view that at the stage of framing of charges the prosecution evidence does not commence, and the Magistrate has therefore to consider the question as to framing of charge on a general consideration of the materials placed before him by the investigating Police Officer. The standard 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 228 of the Code of Criminal Procedure. The court also took the view that 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 charges against the accused in respect of the commission of that offence. 7. So, Mr. Moitra concluded his argument by pointing out that all the materials were placed before the trial court at the time of consideration of the charge and the extra-judicial confession is not the only martial on record to justify the framing of charge or to find out prima facie case. Accordingly, Mr. Moitra prayed for dismissal of the present application. 8. Moitra concluded his argument by pointing out that all the materials were placed before the trial court at the time of consideration of the charge and the extra-judicial confession is not the only martial on record to justify the framing of charge or to find out prima facie case. Accordingly, Mr. Moitra prayed for dismissal of the present application. 8. After a due consideration of the submissions made by the learned counsels of both sides I find that in the impugned order the learned Additional Sessions Judge analysed the details of the materials placed before him and. thereafter he considered that there was no good ground for discharging the accused person indicating that he duly considered the materials for the purpose of section 227 of the Code. The learned Judge thereafter analysing the circumstances and the materials collected decided to frame a charge against the accused persons thereby indicating that he also duly considered the provisions of section 228 of the Code. Whether a person can be found guilty, or not on the basis of an extra-judicial confession without being supported by a 'statement under section 164 of the Code can only be decided after a full trial of the case. It is too early for this court to assess that extra-judicial confession in its true perspective. It is also not known as to what further evidence would be produced before the trial court in course of the trial and whether there will be any scope of admitting the guilt by the accused persons themselves in course of framing of the charge or while being examined, under section 313 of the Code. 9. So after due consideration of the materials on record and the circumstances I do not find any reason to interfere with the order impugned and accordingly the revisional application is dismissed with a direction upon the learned Magistrate to proceed with the case in' accordance with law with utmost expedition. All interim orders are vacated. 10. Let a copy of this order be sent to the court below forthwith. 11. Xerox certified copy of this order, if applied for, be supplied to the parties as expeditiously as possible. . Revisional application dismissed.