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2008 DIGILAW 277 (PAT)

Krishna Kumar @ Munna Lal v. State Of Bihar

2008-02-08

DHARNIDHAR JHA

body2008
Judgment 1. The present application has been preferred by the informant of Bhagalpur Kotwali (Tilkamanjhi) Police Station Case No. 93 of 2007 which gave rise to the Sessions Trial No. 665 of 2007 so as to challenging the correctness of the order dated 20.7.2007. By the impugned order, the learned Sessions Judge, Bhagalpur, discharged the accused of the case holding that no offence under Section 307 of the Indian Penal Code was made out and sent back the case to a Magistrate of the Ist Class at Bhagalpur for trying the same in the light of the provision of Section 228(1)(a) of the Code of Criminal Procedure (Cr PC). 2. The prosecution case, in short, is that while the Bhabhi of the informant was closing the gate of her house, the accused entered inside it and assaulted her with fists. On being objected to it by the informant, the accused also assaulted him with brick and knife causing bleeding injury to his head. The accused also took away a gold chain of the Bhabhi of the informant. 3. The police submitted charge-sheet under Sections 307 of the Indian Penal Code, as appears from Annexure-4 to the present application, and, accordingly, the case was committed by the learned Judicial Magistrate to the Court of Session. The learned Sessions Judge after hearing both the parties and perusing the case record and the case diary came to the conclusion that the manner of occurrence, the nature of the injury and the absence of intention on the part of the accused indicated that no offence under Section 307 of the Indian Penal Code was made out. The learned Judge held that the facts constituted offences under Sections 452, 323 and 379 of the Indian Penal Code which were not exclusively triable by the Court of Session and, as such, exercising his powers under Section 228(1)(a) of the Cr PC sent back the record to Shri S.K. Singh, Judicial Magistrate, Ist Class, Bhagalpur. 4. By referring to the decision of the Supreme Court rendered in State of Bihar v. Ramesh Singh reported in AIR 1977 SC 2018 . it was contended that at the beginning stage of the trial, the truth, veracity and effect of evidence which the prosecutor proposes are not to be meticulously judged, nor any weight is to be attached to the probable defence of the accused. it was contended that at the beginning stage of the trial, the truth, veracity and effect of evidence which the prosecutor proposes are not to be meticulously judged, nor any weight is to be attached to the probable defence of the accused. It was not obligatory for the Judge, to consider at that very stage, the defence or other materials in detail in a sensitive balance so as to finding out whether they were incompatible with the innocence of the accused or not. It was contended that as held by the Supreme Court in the above case, if the materials raise strong suspicion against the accused about the commission of the offence then the Judge was obliged to frame charges. 5. The accused has not been impleaded as one of the opposite parties in this petition, depriving this Court of the privilege of hearing him and knowing his views on the matter and it is also a question on which the result of this application can very much depend. However, as the question raised is precisely the question of law hinging upon the provisions of Sections 227 and 228 of the Code of Criminal Procedure, I have decided to dispose of this application mainly on this point. 6. Chapter XVIII of the Cr PC relates to trial before a Court of Sessions and Section 225 directs that the trial has to be conducted by the Public Prosecutor. Section 226 requires the prosecutor to open his case if accused appears or is brought before the Court, by describing the charge brought against the accused and also stating as to by what evidence he proposes to prove the guilt of the accused. Section 227 speaks about the discharge of the accused whereas Section 228 speaks abut sending back the record to the Magistrate of the Ist Class, if there is ground for presuming that the accused has committed an offence which is not triable by the Court of Sessions. It further lays down that if the offence is exclusively triable by the Court of Session, the Judge shall frame a charge in writing against the accused and on such framing of the charge the same shall be read over and explained to the accused who shall be asked to plead guilty or claim to be tried. It further lays down that if the offence is exclusively triable by the Court of Session, the Judge shall frame a charge in writing against the accused and on such framing of the charge the same shall be read over and explained to the accused who shall be asked to plead guilty or claim to be tried. I propose to reproduce the provisions of Sections 227 and 228 of the Cr PC which are hereinbelow as : "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. 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 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 claims to be tried." 7. On consideration of the two provisions simultaneously and in juxtaposition to each other it could be found out that the accused could be discharged if the Judge finds "there is not sufficient ground for proceeding against the accused". This finding has to be recorded upon consideration of the record of the case and the documents submitted therewith and also after hearing the submissions of the accused in the above behalf. 8. This finding has to be recorded upon consideration of the record of the case and the documents submitted therewith and also after hearing the submissions of the accused in the above behalf. 8. As against the above, the language of Section 228 requires the Judge to record a finding after the consideration as indicated under Section 227 that "there is ground for presuming that the accused has committed an offence." In both the cases the consideration has to be the same. The Judge has to consider the record of the case, the documents submitted therewith as also the submissions of the Prosecutor and the defence so as to recording a finding of sufficiency of ground for proceeding or that there was ground for presuming about the commission of the offence by the accused. Not sufficient ground for proceeding appears in two other provisions of the Cr PC either in the same form, i.e., in the negative form or in the affirmative form. Section 203 of the Cr PC also speaks of there being "no sufficient ground for proceeding" after consideration of the materials by a Magis- trate while acting under Section 203 so as to dismissing the complaint petition. Section 204 of the Cr PC, which relates to issue of process, against a person after conclusion of an inquiry under Section 202, Cr PC, uses the term sufficient ground for proceeding. In any view of the matter, the negative form or the affirmative form appears of the same terminology, i.e., sufficient ground for proceeding. The meaning of the terminology has always to be the same. This term was considered by the Supreme Court in the case of Chandradeo Singh v. Prakash Chandra Bose reported in AIR 1963 SC 1430 and it was held in that case by the Apex Court to mean as to whether there was sufficient ground for proceeding and not that there was sufficient ground for conviction. It was further held that if a prima facie case was made out, the accused has to be summoned after holding an inquiry without considering that the accused had a sound defence or the impact of the materials could have on the ultimate result of the trial. It was further held that if a prima facie case was made out, the accused has to be summoned after holding an inquiry without considering that the accused had a sound defence or the impact of the materials could have on the ultimate result of the trial. On the above explanation of the term the Supreme Court in the case of State of Bihar v. Ramesh Singh (supra) held that even if there was grave doubt that the accused had committed an offence, then he has to be put on trial. 9. Above could be the construction of the provision of Section 227 of the Cr PC and similarly while construing the provision of Section 228 of the Cr PC the Judge has to record an opinion regarding the commission of an offence by the accused. The perusal of the aforesaid two provisions could indicate that the finding by the Judge could be recorded only when he had considered the materials. Thus, it appears obligatory for the Judge to consider the materials in detail. If he is required to record a finding regarding the commission of the offence by the accused then he must read the materials in such a manner as to search out the ingredients of all the offences for which the accused is sought to be charged and if on materials available on record, the Judge finds that all ingredients of the offences on the standard of a prima facie scale are constituted then only he will be competent to say that the offences which appeared committed by the accused are exclusively triable by the Court of Session. In other words, if the facts do constitute an offence which could not be exclusively triable by the Court of Session then the Judge ceases to have any jurisdiction in trying the case and shall have to act as per the provision of Section 228(1)(a) of the Cr PC. This view appears taken by the Supreme Court in a decision rendered in State of Karnataka v. L. Muniswami reported in AIR 1977 SC 1489 . The Supreme Court in the above noted case has held that recording of the reasons as to what offences were made out, or that no offence exclusively triable by the Court of Session was made out, was required to be given so that the superior Courts could examine the reasonings. 10. The Supreme Court in the above noted case has held that recording of the reasons as to what offences were made out, or that no offence exclusively triable by the Court of Session was made out, was required to be given so that the superior Courts could examine the reasonings. 10. Thus, in the light of the above discussions what appears explicitly established is that the Judge while acting under Section 228 of the Cr PC could consider the materials if not meticulously, definitely with some deeper forensic angles, so as to finding out as to what offence was constituted on facts. The provision of Section 228 of the Cr PC is so explicitly clear as to leaving no other construction to be made on it. 11. Coming to the impugned order passed by the learned Sessions Judge, it appears that he considered the case diary and other materials available on the record and recorded the circumstances which did not constitute the offence under Section 307 of the Indian Penal Code. While doing so, the learned Judge has recorded that the injury was simple and that there was nothing to indicate that there was intention of the accused to kill the informant. Intention could be gathered from the nature of the injury and there was no wrong if the learned Judge was looking into the injury after going into the details thereof to record the absence of intention on the part of the accused. At the same time, the learned Judge was perfectly within jurisdiction vested in him by the relevant provision of Section 228 of the Cr PC to record what offence was made out and I am satisfied that the learned Judge did not fall in error in passing the impugned order. 12. It is well known that an order of summoning and cognizance as also an order of framing charge or discharge of the accused are orders which are passed on holding an inquiry. The informant preferred the present application under Section 482 of the Cr PC requiring the Court to quash the impugned order. He dd not implead the accused as a party who could have been affected by an adverse order from this Court. The informant preferred the present application under Section 482 of the Cr PC requiring the Court to quash the impugned order. He dd not implead the accused as a party who could have been affected by an adverse order from this Court. If this Court had directed rehearing of the matter by setting aside the order it could have tantamount to an order directing holding of further inquiry for issuing which direction, there is a specific provision under Section 398 of the Cr PC. Section 398 of the Cr PC indicates that no order of holding further inquiry could be passed by any Court unless the accused who had been discharged had been afforded an opportunity of being heard. Here in the present case, the accused was discharged as indicated above. The relief is by way of a direction for holding further inquiry, which could not be granted in a petition under Section 482 of the Cr PC. It could be granted only in petition filed under Sections 398 and 399 of the Cr PC. 13. In any view of the matter, I find that the impugned order does not suffer from any material illegality which could render it as an abuse of the process of the Court or an example of patent injustice to the informant. 14. Accordingly, this application is dismissed.