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2008 DIGILAW 418 (JK)

Goverdhan Gopal v. State

2008-11-10

SUNIL HALI

body2008
1. The petitioners have preferred this revision against the order of framing of charge under sections 302, 327,147,148,447 and 149 RPC passed by the learned Sessions Judge, Kathua on May 3, 2008. It is averred that FIR No. 196/2007 was registered by the Police Station Kathua. Prior to this FIR No. 195/2007 had been registered by Police Station Kathua at the behest of petitioner No. 5. 2. The grievance set out by the petitioners is that the trial court has framed charge even though some of the accused persons were entitled to discharge. They state that no reasons have been given by the trial court while framing the charge even though detailed arguments were addressed on behalf of the petitioners. 3. Having failed to persuade the trial court to pass a detailed order the present petition has been preferred. 4. I have heard the learned counsel for the parties and perused the record. At the outset it is important to state that petitioners have not pressed other grounds at this stage but have confined themselves only as to whether the trial court was right in framing the charge without giving detailed reasons for doing the same. According to the petitioners, the trial court has only stated that it has perused the statements of witnesses and the report under section 173 Cr.P.C. and thereafter has framed charge. According to the petitioners, the trial court was required to indicate the allegations against the accused persons and also submissions made by the learned counsel for the parties. Having failed to do so the trial court has committed an error which is required to be corrected by this court. 5. The case is triable exclusively by the learned Sessions Judge and in this respect the provisions of law dealing with the framing of the charge before the court of sessions are quoted below. 267. Opening case for Prosecution When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 205-D 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. 268. 267. Opening case for Prosecution When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 205-D 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. 268. 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 no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing. 269. 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 exclusive triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on 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. 6. Analyzing the import of the section it is abundantly clear that the trial court is required to hear both the parties and record a finding that the case is either fit for charge or discharge. It cannot act as a mouthpiece of the Investigating agency. Application of mind is required to be reflected while passing order of charge or discharge. Once the court is to hear the parties and peruse the material, the bare minimum expected is that the court must reveal the allegations against all the accused and discuss the material available on the record as well as arguments addressed by the rival parties. This is bare minimum which is required to be done by the court while framing charge. This is bare minimum which is required to be done by the court while framing charge. Mere recording of the fact that he has examined the material and the evidence, in my opinion, would not be sufficient while ordering framing of charge. Application of mind must be reflected by the order. I say so because framing of charge has to be done only after such consideration and hearing the parties. 7. Mr. Raina refers to two judgments of the Apex Court reported in Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijja ( AIR 1990 SC 1962). It is stated in the judgment as under:- The Court may for this limited purpose sift the evidence as it cannot be expected at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense . 8. The other judgment quoted is Dillawar Babu Kurane v. State of Maharashtra ( AIR 202 SC 564). The court has stated that a Judge cannot be expected to act as a Post Office. The aforesaid judgments clearly state that there has to be application of mind while framing the charge. This application of mind must be reflected in the order itself. I, therefore, hold that while framing the charge the minimum the court is required to state is the allegations against the accused and also arguments addressed by both the prosecution and defence. However, it is not mandatory to give reasoned judgment while agreeing or disagreeing with the contention. I do not find the trial court in this case has adhered to this principle. Accordingly, I set aside the order of the trial court and direct it to hear the parties afresh on the question of framing of charge. Let the parties appear before the trial court on 20.11.2008. Record be also returned back.