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2007 DIGILAW 83 (BOM)

AMBADAS KASHIRAO KHARAD v. State of Maharashtra

2007-01-18

A.P.LAVANDE

body2007
ORAL JUDGMENT :- Heard Mr. Anil Mardikar, learned counsel for the applicants and Mr. T. A Mirza, learned AP.P. for the respondent-State. 2. Rule. Heard forthwith by consent of the learned counsel. 3. Aggrieved by framing of charge under section 329 read with section 149 of the Indian Penal Code by the 3rd Ad hoc Additional Sessions Judge, Achalpur in Sessions Trial No. 13/2001, the applicants have preferred the present Revision Application. 4. On 25-9-2006 the learned Additional Sessions Judge has framed charge against the applicants under sections 147, 148, 329, 427, 504 and 506 read with section 149 of the Indian Penal Code. The main grievance of the applicants who are the accused in Sessions Trial No. 13101 is that the charge has been framed against them even without hearing their advocate who was representing all the applicants in the said case. The learned counsel for the applicant has placed before me the copy of the Rojnama in the said case which discloses that the learned Judge has framed charge against the applicants as mentioned above even without hearing the applicants before framing of the charge. S. Mr. Mardikar, has made a grievance that such a practice is being followed not only in the Court which has passed the present order but in several other Sessions Courts/ Additional Sessions Courts within jurisdiction of this Court. This position has not been disputed by Mr. Mirza the learned AP.P. for the State. 6. In view of the above position, I deem it necessary to deal with the submissions made by Mr. Mardikar in the light of the provisions of the Code of Criminal Procedure. Chapter XVIII of the Code of Criminal Procedure deals with the procedure to be followed by the Sessions Court in case of trial before it. At this stage it would be appropriate to quote sections 226, 227 and 228 (as amended by the State of Maharashtra) of the Code of Criminal Procedure. They read as under: "Section 226. Opening case for prosecution. - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." "Section 227. Opening case for prosecution. - When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused." "Section 227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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. 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 or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such 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 subsection (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 claims to be tried. 7. Section 226 of the Code of Criminal Procedure provides that after the accused appears or is brought before the Court pursuant to commitment of case under section 209 the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove guilt of the accused. Section 227 contemplates consideration of the record of the case by the Judge and hearing of the submissions on behalf of the accused and prosecution and passing of the order either framing charge or discharging the accused. Section 227 contemplates consideration of the record of the case by the Judge and hearing of the submissions on behalf of the accused and prosecution and passing of the order either framing charge or discharging the accused. It is now well settled by catena of the decisions of the Apex Court that if the Judge wants to frame charge he may not pass a detailed order giving reasons but if he wants to discharge the accused he has to give detailed reasons for discharging the accused. See Om Wati (Smt) and another vs. State and others. 2001 SCC (Cri) 685. However, section 227 mandates consideration of the record and hearing of the prosecution as well as accused before passing an order framing charge or discharging the accused. Section 228 of the Code of Criminal Procedure contemplates consideration of the record and hearing of the accused for the purpose of finding out if there is ground for presuming that the accused has committed any offence. In case after perusing the record and hearing the prosecution and the accused, the Judge comes to the conclusion that the offence is exclusively triable by the Sessions Court he has to frame charge against the accused and thereafter proceed further in terms of the Chapter xvrn of the Code of Criminal Procedure. In case the Judge comes to the conclusion that prima facie case is made out against the accused for the offence/ offences triable by the Magistrate and not exclusively triable by the Court of Sessions the Judge has to frame charge and transfer the case for trial to the Chief Judicial Magistrate or any other Judicial Magistrate, First Class as the case may be and direct the accused to appear before the concerned Magistrate on such date he deems fit and thereupon the concerned Magistrate has to try the offence in accordance with the procedure for the trial of warrant cases instituted on police report. 8. A bare perusal of the above sections makes it clear that in a Sessions Trial the case has to begin with opening of the case by the prosecution followed by arguments on behalf of the prosecution and the accused culminating in passing of an order provided in section 227 of the Code of Criminal Procedure. 8. A bare perusal of the above sections makes it clear that in a Sessions Trial the case has to begin with opening of the case by the prosecution followed by arguments on behalf of the prosecution and the accused culminating in passing of an order provided in section 227 of the Code of Criminal Procedure. The compliance of sections 226 and 227 is not an empty formality and the Sessions Courts dealing with the sessions cases are bound to comply with the sections 226 and 227 of the Code of Criminal Procedure in letter and spirit. Section 226 has been enacted so that the accused knows in advance the nature of the evidence which the prosecution proposes to lead to prove the charge brought against him. The object of section 227 is to ensure expeditious disposal of sessions cases so that the accused is discharged if there is no case against him or tried quickly and either acquitted or convicted as the case may be. Section 227 also saves the accused from harassment inasmuch as if the records do not make out any prima facie case against the accused the accused is entitled to be discharged. This is not only with a view to avoid undue harassment of the accused but also waste of public time over the cases which do not disclose even prima facie case. Therefore, at this stage the Judge has to apply his judicial mind to find out as to whether prima facie any offence is made out against the accused having regard to the record relied upon by the prosecution. No doubt exercise undertaken by the Judge at this stage is to find out if there is a prima facie evidence against the accused so that the accused can be tried by the competent court, that is, Sessions Court or any other Court! Magistrate having jurisdiction to try the offence. 9. What I find in the present case is that the learned Additional Sessions Judge has directly proceeded to frame charge against the applicants without complying with the provisions of sections 226 and 227 of the Code of Criminal Procedure. This practice ex facie contrary to Chapter XVIII of the Code of Criminal Procedure and as such cannot be countenanced. 10. What I find in the present case is that the learned Additional Sessions Judge has directly proceeded to frame charge against the applicants without complying with the provisions of sections 226 and 227 of the Code of Criminal Procedure. This practice ex facie contrary to Chapter XVIII of the Code of Criminal Procedure and as such cannot be countenanced. 10. In view of the above, charge dated 25-9-2006 framed against the applicants in Sessions Trial No. BIOI deserves to be quashed and set aside and accordingly set aside and the matter is remanded to the Additional Sessions Judge Achalpur to pass appropriate order after complying with the sections 226 and 227 of the Code of Criminal Procedure. 11. Since the practice of directly framing the charge against the accused in the Sessions Trial appears to have been followed by different Sessions/Additional Sessions Courts within the jurisdiction of this Court it is considered necessary to circulate this judgment to all the Sessions Judges within the jurisdiction of this Bench who in turn shall circulate the same to all the Additional Sessions Judges working in their respective divisions. The Registrar (1) to take appropriate steps in the matter. The Revision Application stands disposed of. Order accordingly.