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2003 DIGILAW 985 (PAT)

Rustam v. State Of Bihar

2003-09-10

INDU PRABHA SINGH

body2003
Judgment 1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 9.4.2002 passed by the 5th Addl. Sessions Judge, Samastipur in S.T. No. 213 of 2001 whereunder the learned trial court had refused the prayer of the petitioners made in a petition dated 18.3.2002 for transferring the case for trial to the court of the Addl. Chief Judicial Magistrate, Rosera in terms of Section 228(1)(a) of the Code. 2. From the prosecution case it appears that the informant (opposite party no. 2) had lodged the F.I.R. before the Officer Incharge of Bithan Police Station which was registered under Sections 341, 323, 324/34 of the Indian Penal Code. After completion of investigation the police submitted charge sheet against the accused persons also under Section 307 of the Indian Penal Code besides the aforesaid sections mentioned above. The learned Magistrate on receipt of the police report submitted under Section 173(2) of the Code took cognizance of the offence and committed the case to the court of session. On 18.3.2002 a petition was filed under section 228(1)(a) of the Code before the trial court for getting the case transferred to the court of the Addl. Chief Judicial Magistrate, Rosera since the offences alleged were triable by a Magistrate as no case under Sections 307 of the Indian Penal Code was made out. Thereafter on 9.4.2002 the trial court framed the charges under Sections 341, 148 and 307 of the Indian Penal Code and also under Section 307/149 of the Indian Penal Code against the present petitioners. On the same day the learned trial court rejected the petition dated 18.3.2002 for the transfer of the case to the court of the Addl. Chief Judicial Magistrate allegedly by wrongly observing that this petition was not pressed. 3. It has been contended that under law it was incumbent upon the trial court to hear the submission made on behalf of the prosecution and the accused persons in terms of section 227 of the Code to ascertain as to whether there is sufficient ground for proceeding against the accused or not. 3. It has been contended that under law it was incumbent upon the trial court to hear the submission made on behalf of the prosecution and the accused persons in terms of section 227 of the Code to ascertain as to whether there is sufficient ground for proceeding against the accused or not. In the present case, as will appear from the order sheet dated 9.4.2002, the accused persons were not heard on the point of discharge/charge before framing of the charge for the offences as alleged, in terms of section 228 of the Code. This section mandates that after considering the records of the case and after hearing the submissions made by both the parties as envisaged under Section 227 of the Code if the Judge is of the opinion that the accused had committed an offence which is exclusively triable by the court of sessions, only then he shall proceed to frame the charges against them. In the present case the petitioners were not given an opportunity to be heard on the point of charge and the learned trial court had passed the impugned order mechanically. The injury sustained by the informant will come only under Section 324 of the Indian Penal Code and, therefore, the learned trial court should have transferred the case to the court of the Additional Chief Judicial Magistrate, Rosera. The witnesses examined during investigation have not supported the case under Section 307 of the Indian Penal Code against the present petitioners. The learned trial court has failed to consider the mandatory provisions as contained in Sections 227 and 228(1)(a) of the Code, in its true spirit. On these grounds amongst others it has been prayed that the impugned order dated 9.4.2002 be quashed. 4. From the order sheet dated 13.12.2002 it appears that the notice to opposite party no. 2 was issued to show cause as to why this application be not admitted and if possible be disposed of at the admission stage itself. From the order sheet dated 5.8.2003 it appears that the parties were heard on this admission matter. 5. The parties have addressed the court also on the point of the maintainability of this petition in view of the provisions as contained in Sections 227 and 228 of the Code. From the order sheet dated 5.8.2003 it appears that the parties were heard on this admission matter. 5. The parties have addressed the court also on the point of the maintainability of this petition in view of the provisions as contained in Sections 227 and 228 of the Code. It has been submitted that in terms of Section 227 of the Code it was incumbent on the court to hear both the prosecution and the accused on the point of charge/discharge of the accused before proceeding to frame the charge under Section 228 of the Code. In this connection I will firstly refer to the order sheet dated 9.4.2002 which runs as follows : "All the six accused persons have filed their attendance. Case called out. The accused persons appeared before this Court alongwith their learned lawyer. Charge for the offences u/s 341, 148 and 307 I.P.C. framed against accused (1) Kari Safique and (2) Md. Daud. Further charge for the offences u/s 341 and 307/149 I.P.C. framed against accused (1) Rustam (2) Babul Haque (3) Md. Heera and (4) Yasin Nadaf, which were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. To 16.4.02 for evidence and for hearing on this petition of the prosecution dated 27.3.01 and its rejoinder dated 18.3.02 and also on the petition dated 18.3.02 filed on behalf of the accused. Sd./5th Addl. S.J." 6. From this order, as has been pointed out on behalf of the petitioners, it will clearly appear that before framing of the charge they were not heard at all. According to them this is in clear violation of the mandate of law as contained in Sessions 227 and 228 of the Code. On these grounds they have contended that the impugned order should be quashed. 7. This takes us to the consideration of Sections 227 and 228 of the Code. Section 227 of the Code runs as follows : "227. DischargeIf upon consideration of the record of the case and the documents submitted therewith, and after hearing the submission of the accused and the prosecution in this half, (emphasis supplied), 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." Section 228 of the Code runs as follows : "228. Framing of charge. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (a) is not exclusively triable by the Court of Session, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant cases instituted on a police report: (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claimed to be tried." 8. From the aforesaid two sections it becomes clear that the law mandates that submissions on behalf of the accused and the prosecution has to be heard before passing the order of discharge or framing of charge. It is only after such hearing as aforesaid that the charge is to be framed if the Judge is of the opinion that the offence alleged is exclusively triable by the court of session. Learned counsel appearing on behalf of the petitioners has submitted that the aforesaid provision in Sections 227 and 228 of the Code clearly warrants that the accused also has to be heard in the matter of framing of the charge or their discharge. It is only then that the court can proceed to frame charge against the accused. 9. In this connection my attention has been drawn to the decision of the Honble Supreme Court in the case State of Bihar V/s. Ramesh Singh ( AIR 1977 SC 2018 ). In this decision it has been held that reading the provisions of Sections 227 and 228 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. Nor is any weight to be attached to the probable defence of the accused. At that stage, the Court is not to see whether there is sufficient ground for conviction of the accused. At the initial stage, if there is strong suspicion against the accused 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. 10. This decision was followed by the Honble Supreme Court in the case of Supdt. & Remembrancer of Legal Affairs, West Bengal V/s. Anil Kumar Bhunja & Ors. ( AIR 1980 SC 52 ). In this decision it has also been held that at the stage of framing of the charges the prosecution evidence had not as yet commenced. The Magistrate has, therefore, to consider the question of framing of the charge on a general consideration of the materials placed before him by the investigating Police Officer. At the stage of Sections 227 and 228 of the Code even a strong suspicion found upon the 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 the charges against the accused. 11. This view finds further support from the case of Union of India V/s. Prafulla Kumar Samal & another ( AIR 1979 SC 366 ). Dealing with Section 227 of the Code it has been observed as follows : (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to shift and weight 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 grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceed with the trial. (3) The test to determine a prima facie case wouid naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (3) The test to determine a prima facie case wouid 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 produced 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 court 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." 12. In the case of Satish Mehra V/s. Delhi Administration and another [ (1996) 9 SCC 766 )] the Honble Supreme Court has held that in course of framing of the charge the court is not debarred from looking into any material produced by the accused at that stage. Hearing of accused at this stage is also warranted by law. The Honble Supreme Court has further proceeded to hold that the hearing of the accused at this stage is not confined only to oral arguments but also examination of the documents filed on his behalf. 13. The views expressed by the Honble Supreme Court in the case of Union of India (supra) have been further confirmed by it in the case of Dilawar Balu Kurane V/s. State of Maharashtra ( AIR 2002 SC 564 ). In this decision relying on the case of Union of India (supra) the Honble Supreme Court while examining the provisions of Section 227 of the Code has held that under this section the Judge has power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie has been made out. The Judge is not merely to act as a post office. The Judge is not merely to act as a post office. Even on grave suspicion disclosed from the materials brought on record the Judge is justified in framing of the charge, if however the suspicion is only some and not grave he will discharge the accused. 14. I have discussed the law on the subject as laid down by the Honble Supreme Court. Applying the same it becomes clear that before passing the order under Sections 227 and 228 of the Code the Sessions Judge has to give an opportunity of hearing both to, the prosecution as well as the accused. In the present case, however, as will appear from the order sheet dated 9.4.2001 it appears that before framing of the charge no opportunity of being heard was given to the accused or even to the prosecution. The order sheet dated 9.4.2002 simply shows that the accused persons had appeared before the court alongwith their iawyer. It does not show that their lawyer was heard by the court on the point of framing of the charge. As noticed above the law is very clear on this point. It mandates the hearing of the accused before passing the order under Sections 227 and 228 of the Code. In the present case it is clear from the order sheet of this date that this mandatory provision of law was not complied with. Simply presence of the lawyer for the accused will not mean that he was heard on the point of framing of the charge. Thus obviously the procedure adopted by the learned trial court is not correct and not warranted by law. it, therefore, can not be sustained and, has to be quashed. 15. From the order sheet dated 9.4.2002 added later on it appears that the learned lawyer on behalf of the accused persons submitted that he does not want to press the petition dated 18.3.2002 filed on behalf of the accused to return the case to the court of Additional Chief Judicial Magistrate. This petition was, accordingly, rejected as not pressed. In the present application, however, it has been contended that it was not submitted before the learned trial court that the petitioners are not pressing their petition dated 18.3.2002. This petition was, accordingly, rejected as not pressed. In the present application, however, it has been contended that it was not submitted before the learned trial court that the petitioners are not pressing their petition dated 18.3.2002. As a matter of fact before me it has been contended that this petition was pressed on their behalf but was rejected by the court, though wrongly it has been shown to be rejected as not pressed. Whatever may be the case I will firstly proceed to examine the law on the subject. In this connection a reference may be made to Section 209 of the Code. It provides for the commitment of case to the court of session where it is found that the offence is triable exclusively by it. It says that in a case instituted on a police report if it appears to the Magistrate that the offence is triable exclusively by the court of session he shall commit the case to the court of session and remand the accused to custody. This section deals the provisions of law as required for passing an order of commitment and for taking necessary action in the matter. The word "shall" used in Section 209 of the Code clearly shows that it is mandatory in nature. 16. From the facts stated in the present application it appears that the police after completing the investigation submitted charge sheet also under Section 307 of the Indian Penal Code which is exclusively triable by the court of session. If further appears that on the receipt of the police report under Section 173(2) of the Code the learned Magistrate committed the case to the court of session. The impugned order dated 9.4.2002 shows that the learned trial court proceeded to frame the charges under various sections including section 307 of the Indian Penal Code against the present petitioners. Under the aforesaid circumstances it can not be held that the present case is one covered by Section 228(1)(a) of the Code, as obviously the charge also under Section 307 of the Indian Penal Code has been framed against some of the petitioners. In this connection my attention has been drawn to Annexure-2 which is the injury report of opposite party no. 2. It has been pointed out that there is no grievous or serious injury found on the person of opposite party no. In this connection my attention has been drawn to Annexure-2 which is the injury report of opposite party no. 2. It has been pointed out that there is no grievous or serious injury found on the person of opposite party no. 2 which will lead to the conclusion that the case is also under Section 307 of the Indian Penal Code. It may be pointed out here that in order to constitute an offence under this section no injury at all is necessary inasmuch as if a person fires on another with his gun with an intention to kill him but he misses the target, nevertheless, it will be held that he has committed the offence under Section 307 of the Indian Penal Code. Hence, I do not find any substance in this contention of the learned counsel for the petitioners. Moreover the order sheet dated 9.4.2002 clearly. shows that the petition dated 18.3.2002 for returning the case to the Additional Chief Judicial Magistrate was rejected as not pressed. If the petitioners had any objection to the observations made in this order it was open to them to file a petition denying this fact on the next date that was 16.4.2002 on which both the parties had appeared and P.W. 1 was examined, cross- examined and discharged. Hence, I do not find any merit in this contention of the petitioners. So far as the later portion of the order dated 9.4.2002 is concerned showing that the petition of the petitioners dated 18.3.2002 was rejected as not pressed. So far as the main order sheet dated 9.4.2002 is concerned as noticed above the same can not be sustained and is, therefore, quashed. 17. In the result, this application is allowed in part in the manner indicated above. The case is sent back to the learned court below for proceeding from the stage of framing of the charge in accordance with law in terms of Sections 227 and 228 of the Code and also in the light of observations made in the earlier part of this order. The petition is ordered, accordingly.