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2004 DIGILAW 466 (GAU)

Ataur Rasul v. Imtiaz Rasul

2004-08-09

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. Aggrieved by the order, dated 07.10.1999, passed by the learned Special Judicial Magistrate, Guwahati, in C.R. Case No. 3169/98, framing charge under Section 468 IPC against the three accused persons, namely, Ataur Rasul and Md. Iflikar Rasul, accused Ataur Rasul has come before this Court, with the help of the present revision, to get set aside the order framing charge and the entire proceedings quashed. 2. From the impugned order, dated 07.10.1999, it transpires that the learned trial Court has framed the charge against the accused on the ground that the materials on record give rise to the presumption that the accused has committed an offence punishable under Section 468 IPC. The charge has not been framed under Section 468 read with Section 34 IPC. 3. Coupled with the above, It is imperative to note that an offence under Section 468 IPC is punishable by imprisonment of more than 2 years and has to be tried by adopting warrant procedure. The case at hand is a case, which was instituted otherwise than on police report. Charge in a trial of warrant case registered on the basis of the police report is framed under the provisions of Section240 Code of Criminal Procedure, whereas the charge in a trial of warrant case, instituted otherwise than on police report, is framed under Section 245 Code of Criminal Procedure The standards of materials required for the purpose of framing of the charge in the two cases are substantially different. If in a warrant procedure trial, based on police report, the materials collected by investigation give rise to a presumption that the accused has committed an offence, a charge in terms of Section 240 Code of Criminal Procedure can be framed. However, on the basis of such a presumption, no charge can be freed in a trial of warrant case instituted otherwise than on police report. According to Section 245 Code of Criminal Procedure, a Magistrate can frame charge only when the evidence brought on record, if remains rebutted, would warrant conviction of the accused. 4. In the case at hand, the learned trial Court has, admittedly, framed the charge on the basis of the presumption that the accused had committed an offence under Section 468 IPC. 4. In the case at hand, the learned trial Court has, admittedly, framed the charge on the basis of the presumption that the accused had committed an offence under Section 468 IPC. That no such charge under Section 468 could have been framed in the present case on the basis of presumption cannot be disputed and is not, in fact, disputed. 5. Considering, therefore, the matter in its entirety and in the interest of justice, the impugned order, dated 07.10.1999, is hereby set aside and the matter is remanded to the learned trial Court to hear the parties on the question of framing of charge and, upon hearing, to pass necessary orders in terms of Section 245(1) Code of Criminal Procedure keeping, however, in mind the position of law as explained hereinabove. 6. With the above observations and directions, this revision shall stand disposed of. 7. Send back the LCR.