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2009 DIGILAW 205 (RAJ)

Om Prakash v. State of Rajasthan

2009-01-22

MAHESH CHANDRA SHARMA

body2009
JUDGMENT 1. - This revision petition has been filed by the accused petitioners, against the order dated November 12, 2003 of Special Court, Women Atrocities and Dowry Cases, Kota in Sessions Case No. 70 of 2003 by which charges were framed against the accused petitioners under Sections 306, 323 and 323/34 IPC. 2. Brief facts of the case are that on July 20, 2003, Rajendra Kumar Shrotriya admitted in B.S. Hospital Kota at 1.30 p.m. on Bed No. 11 gave a parcha bayan that at 9.30 a.m. O.P. Sharma, Ex.En. and his wife came at his residence in Thermal Colony and asked him and his wife to get marry their daughter with his son on January 27, 2004 otherwise returned their clothes. He stated to them that only at good time it will be possible and they started beating them and also threatened them. Upon this he brought sulphose tablets and gave it to his daughter and wife and he also consumed one tablet. On becoming unconscious the people of the locality brought one autorickshaw and brought them to the Hospitable, where his wife and daughter died. Upon this the police registered case and filed challan against the accused petitioners. The trial court framed charge against the accused petitioners under Sections 306, 323 and 323/34 IPC. Against this order the accused petitioners filed this revision petition. 3. Mr. A.K. Gupta, learned Counsel for the accused petitioners placing reliance on Section 107 IPC contended that a person must instigates any person to do that thing i.e. suicide. There is no evidence that any of the accused petitioners instigated the complainant deceased or his daughter or his wife to commit suicide. The facts clearly go to show that accused petitioner pressed the complainant to fix the date of marriage before January 27, 2004. The learned Counsel argued that in these circumstances it is clear that no charge be framed against the accused petitioners under Section 306 IPC. The case of the prosecution is that complainant stated that the accused petitioner Om Prakash told him to fix marriage before 27th January 2004 or returned the clothes. Admittedly nothing was told to his wife and daughter to whom he gave sulphose tablets. The case of the prosecution is that complainant stated that the accused petitioner Om Prakash told him to fix marriage before 27th January 2004 or returned the clothes. Admittedly nothing was told to his wife and daughter to whom he gave sulphose tablets. There was some other reason, due to which the complainant gave tablets of sulphose to his wife and daughter and then he himself consumed the same when he saw that his daughter and wife is dead. In these circumstances it is clear that even no charge can be framed against any of the accused petitioner. 4. On the other hand, learned Counsel for the accused respondent Mr. Mahendra Goyal and Mr. R.S. Shekhawat, Public Prosecutor opposed the arguments advanced by Mr. A.K. Gupta. Mr. R.S. Shekhawat, Public Prosecutor argued that the trial court rightly framed the charges against the accused petitioners on the basis of the material available on record. This court in revisional power should not interfere with the order framing charge against the accused petitioners. Learned Counsel, however, has been very cautious not to argue on merits and rightly so because any comment by me on the merits is likely to prejudice the case of the accused or the prosecution. 5. I have heard the learned Counsel for the parties. 6. Before proceeding further it would be appropriate to refer Section 227 of the Code which provides that if upon consideration of record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons. The Apex Court in Kanti Bhadra Shah and Anr. v. State of West Bengal, 2000 CriLJ 746 held that there is no legal requirement that the trial court should write an order showing the reasons for framing a charge. Taking note of the burden of the pending cases on the courts, it was held: "Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. Taking note of the burden of the pending cases on the courts, it was held: "Even in cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per the first Sub-section of Section 245, if a Magistrate, after taking all the evidence considers that no case against the accused has been made out which if un-rebutted would warrant his conviction, he shall discharge the accused. As per Sub-section (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both Sub-sections he is obliged to record his reasons for doing so. In this context it is pertinent to point out that even in a trial before a court of session, the Judge is required to record reasons only if he decides to discharge the accused (vide Section 227 of the Code). But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the Counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at this stage, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and psychotropic Substances Act, 1985." 7. It is a salutary guideline that when orders rejecting or granting bail are passed, the court should avoid expressing one way or the other on contentious issues, except in cases such as those falling within Section 37 of the Narcotic Drugs and psychotropic Substances Act, 1985." 7. At the stage of passing the order in terms of Section 227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. The Apex Court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr., [1989]1 SCR 560 cautioned the High Courts to be loathe in interfering at the stage of framing the charges against the accused. Self-restraint on the part of the High Court should be the Rule unless there is a glaring injustice staring the court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed. 8. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed. 8. Dealing with the scope of Sections 227 and 288 of the Code and the limitations imposed upon the court at the initial stage of framing the charge, The Apex Court in State of Bihar v. Ramesh Singh, 1977 Cri LJ 1606 held: "Reading the two provisions 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 proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227. 9. The Apex Court in Om Wati v. State, 2001 CriLJ 1723 held as under: "...it would not be safe at this stage to deprive the prosecution in proving its case on the basis of direct evidence, the statement of the deceased claimed to be admissible under Section 32 of the Evidence Act and the other documents including the inquest report allegedly disclosing the infliction of injuries on the person of the deceased which resulted in his death. The acceptance of the opinion of the doctors, as incorporated in the post mortem report for the cause of death of deceased being hepatic failure following viral hepatitis cannot be accepted on its face value at this stage. Therefore the order of the High Court would be illegal and liable to be set aside. The Supreme Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for an unjustified litigation under the cloak of technicalities of law." 10. Following principles emerge from the ratios laid down by the Apex Court, in the above cited cases: (i) No reasons are required to be recorded when the charges are framed against the accused persons. (ii) In cases instituted otherwise than on a police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. (iii) Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. (iv) the High Courts to be loathe in interfering at the stage of framing the charges against the accused. (v) At the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. (vi) It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. (vii) At the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. (vii) At the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. (viii) If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. (ix) The Supreme Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons. (x) Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for an unjustified litigation under the cloak of technicalities of law. 11. For these reasons the revision petition being devoid of merit stands dismissed. The trial court is directed to expedite the trial as early as possible. Since the main case has been disposed, the stay application also stands disposed of.Revision Dismissed. *******