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2006 DIGILAW 1195 (PAT)

Sidharth Saran v. State Of Bihar

2006-12-06

L.P.SINGH

body2006
Judgment 1. This application filed under sec. 482 of the Code of Criminal Procedure, 1973 (in short the Code), is directed against the order dated 4.5.2006 passed by Sri Munilal Paswan, the Additional District & Sessions Judge-XII, Patna in ST. No. 1524 of 2005 refusing to discharge the petitioner under sec. 227 of the Code or alter the charge under sec. 228 of the Code. 2. From the prosecution case it,appears that on 13.2.1995 the informant Sita Ram Singh lodged a written report before the Officer Incharge of S.K. Puri police station alleging therein that on 11.2.1995 at about 10.30 A.M. his daughter Rashi Singh had left for her office but she did not return till late in the night. The informant searched for her but could not find out his daughter. Rashi Singh worked in the office of one Sri Nishilesh who was publishing the Magazine "New Circfe". Rashi Singh had interest in journalism and as a free lancer she used to write articles. On the alleged date of occurrence she was working in a Press at B.M. Das Road, Patna. The informant apprehended that his daughter has been kidnapped. On the basis of this written report, case was instituted against unknown at the police station. 3. After investigation the police found the case to be false and, therefore, a final report was submitted before the court on 13.9.1995. Thereafter the informant did not take any step which shows that he was satisfied with the investigation. However, the learned court below did not pass any order on the receipt of the final report on 13.9.1995. At the relevant time the petitioner was Editor of magazine. "New Circle" and the victim girl was an employee at the Press as a Columnist. Nishilesh was the publisher and Chief Editor of this magazine. In the course of investigation it came to light that Rashi Singh had written a letter to Nishilesh on 23.3.1995 informing that she was leaving her house voluntarily because she had differences with her father. It was also stated in this letter that she had married one Rahul Arora, a Punjabi boy. 4. On 6.4.1999 after a lapse of considerable time the informant filed a protest petition before the learned Chief Judicial Magistrate alleging therein that on 11.2.1995 his daughter was abducted by some unknown persons. It was also stated in this letter that she had married one Rahul Arora, a Punjabi boy. 4. On 6.4.1999 after a lapse of considerable time the informant filed a protest petition before the learned Chief Judicial Magistrate alleging therein that on 11.2.1995 his daughter was abducted by some unknown persons. It was further alleged that the petitioner and Nishilesh had master minded her abduction. A demand for ransom of Rs. 5,00,000.00 was made. On the receipt of this protest petition the learned Chief Judicial Magistrate ordered for further investigation. 5. Subsequently the victim girl came to Patna and got her statement recorded under sec. 164 of the Code on 22.7.1999. This statement was made voluntarily and was not recorded at the instance of the police. After further investigation the police submitted a charge-sheet under sections 493, 494, 495 and 420 of the Indian Penal Code. The Chief Judicial Magistrate by his order dated 9.8.2000 did not accept this charge-sheet since the sections mentioned in it were found to be wrong. However, by an order dated 29.8.2000 the cognizance under sections 362 and 366 of the Indian Penal Code was taken. In the meantime, the petitioner obtained anticipatory bail by this Court in Cr. Misc. No. 11267 of 1999 vide order dated 19.5.1999. Ultimately in Cr. Misc. No. 21109 of 2000 an order was passed dated 12.11.2001 dismissing the same. Against this order S.L.P. (Cr.) No. 1519 of 2002 was filed before the Hon ble Supreme Court in which the arrest of the petitioner was stayed but subsequently this application was dismissed as withdrawn. 6. When the matter came before the sessions court in course of the trial an application under sec. 227 of the Code was filed by the petitioner for his discharge. Also a prayer was made under sec. 228 of the Code that if at all the petitioner was to be tried he should be tried under sections 493, 494, 495 and 420 of the Indian Penal Code. However, by the impugned order the learned trial court has rejected the prayer of the petitioner and has ordered for framing of the charge, it is well settled that at stage of the framing of the charge the learned trial court has duty to sift and weigh the evidence for the limited porpose of finding out whether or not a prima facie against the accused has been made out. While exercising the jurisdiction under sections 227 and 228 of the Code the trial Judge is not merely to act as a post office or a mouth piece of the prosecution. The learned trial court failed to take into consideration the fact that this case could hot have ended in the conviction of the petitioner. From the statement of the victim girl under sec. 164 of the Code it would appear that she stayed with the petitioner out of her free will. She had also written various letters to the petitioner. In any view of the matter the statement made under sec. 164 of the Code cannot be treated to be a substantive piece of evidence. The petitioner comes from a respectable family and is a happily married person. On these grounds it has been contended that the impugned order be set aside and the entire criminal proceeding launched against the petitioner may also be set aside. 7. I have heard the parties in detail. It appears that the case is pending before the learned Addl. Sessions Judge and it was submitted before him that the petitioner should be discharged or in the alternative the charges alleged against him are not in terms of the facts of this case and, herefore, in exercise of the power under sec. 228 of the Code they may be changed. 8. Sec.227 of the Code deals with the discharge of the accused if upon consideration of the record of the case and the documents submitted therewith and after the submission of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused. Sec.228 of the Code deals with the framing of the charge if after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused has committed an offence and if such offence is exclusively triable by the Court of Session, he shall frame in writing a charge against the accused. The true scope of Sections 227 and 228 of the Code has come for consideration before the Hon ble Supreme Court from time to time. The true scope of Sections 227 and 228 of the Code has come for consideration before the Hon ble Supreme Court from time to time. In the case of State of Bihar vs. Ramesh Singh (A.I.R. 1977 S.C. 2018) the Hon ble Supreme Court has held that reading of Sections 227 and 228 of the Code 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 purposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. At the stage of Sections 227 and 228 the court is not to see whether there is sufficient ground for conviction of the accused. 9. At the initial stage if there is strong suspicion against the accused which leads the Court to think that there is ground for pesuming that the accused has committed an offence then it is not open to the Court to see that there is no sufficient ground for proceeding against the accused. 10. Also in this connection a reference may be made to the case of Supdt. & Remembrancer of Legal Affairs vs. Anil Kumar Bhunja and Ors. (A.I.R. 1980 S.C. 52). In this case the Hon ble Supreme Court has held that at the stage of framing of the charges, the prosecution evidence has 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.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 Sections 227 and 228. At this stage even a very strong suspicion founded upon materials before him 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 in respect of the commission of that offence. 11. The same view has been taken in the case of Radhey Shyam vs. Kunj Behari & Ors. 11. The same view has been taken in the case of Radhey Shyam vs. Kunj Behari & Ors. [1990 P.L.J.R. 18 (S.C)] in which the High Court had quashed the charges framed by the Sessions Judge on the ground that the evidence and materials on record were not meticulously considered before framing of the charge. The Hon ble Supreme Court has held in this case that at the stage of framing of the charges meticulous consideration of evidence and materials by court is not required. 12. The true scope of Sec.227 of the Code came up for consideration before, the Hon ble Supreme Court also in the case of Union of India vs. Prafulla Kumar Samal and Another (A.I.R. 1979 S.C. 366). In this case it was held that the Judge while considering the question of framing of the charges under sec. 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. 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 proceeding with the trial. In exercising his jurisdiction under sec. 227 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. 13. Relying on this decision the Hon ble Supreme Court in the case of Dilawar Babu Kurane vs. State of Maharashtra (A.I.R. 2002 S.C. 564) held that under sec. 227 of the Code the Judge has power to sift and weigh the evidence for the limited purpose of finding a prima facie case. If grave suspicion is disclosed, the Judge is justified in framing a charge if however the suspicion is not graved (only some) he will discharge the accused. 14. 227 of the Code the Judge has power to sift and weigh the evidence for the limited purpose of finding a prima facie case. If grave suspicion is disclosed, the Judge is justified in framing a charge if however the suspicion is not graved (only some) he will discharge the accused. 14. A similar view had also been taken in the case of Satish Mehra vs. Delhi Administration and Another [ (1996) 9 S.C.C. 766 ]. In this case also the true scope of Sections 227, 228, 239, 240 and 482 of the Code were under consideration before the Hon ble Supreme Court and it was held that at the stage of framing of the charge the Court was not debarred for looking into any material produced by the accused at this stage and hearing of the accused is not confined 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 suggest that no such material shall be looked into by the court at that stage. 15. I have briefly summerised the law on the subject. From the aforesaid discussions it would become clear that at the stage of Sections 227 and 228 of the Code the court is called upon to decide the matter in accordance with law as laid down in the aforesaid decisions. Obviously the court is not to act as a post office. It can take into consideration the defence taken by the accused as also the materials produced by the prosecution. However, the scope of such enquiry is limited and at this stage even a strong suspicion founded upon the materials before the Magistrate or the Court which leads him to form a presumptive opinion as to the existence of factual ingredients constituting the offence alleged may justify the framing of the charge. 16. I have carefully gone through the impugned order passed on the petition of the petitioner filed under sections 227 and 228 of the Code. It appears that the learned trial court has meticulously considered all the submissions placed before him on behalf of the petitioner and has applied his mind to the various points raised on behalf of the prosecution before him. It appears that the learned trial court has meticulously considered all the submissions placed before him on behalf of the petitioner and has applied his mind to the various points raised on behalf of the prosecution before him. I find that the discretion exercised by the learned trial court is based on the law settled on the subject by the Hon ble Supreme Court as noticed above. In the impugned order the learned trial court has taken into consideration all the material facts which required consideration at this stage and has come to the correct conclusion. At this stage the question whether the case will end in conviction or acquittal cannot be made basis for the order of framing of the charge. 17. Under these circumstances I do not find any merit in this application. It is, accordingly, rejected. Learned court below will proceed with the trial of the case after framing of the charge as ordered by him in the impugned order.