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2009 DIGILAW 613 (ALL)

MANNA LAL GUPTA v. STATE OF U P

2009-02-25

NARAYAN SHUKLA

body2009
( 1 ) HEARD Mr. Salil K. Srivastava, learned counsel for the revisionist, Mr. Bireshwar Nath, learned counsel for the c. B. I, and Mr. I. B. Singh, learned counsel for the complainant. ( 2 ) THE revisionist has challenged the order dated 4th of July, 2008 passed by the learned Additional Sessions Judge/f. T. C. in sessions Trial No. 331 of 2004, arising out of case Crime No. 259 of 2002, under sections 302, 120-B IPC, Police Station kaiserbagh, district Lucknow, whereby the learned Additional Sessions Judge, prima facie, being satisfied with the material available on record has proceeded to frame the charge against the revisionist. ( 3 ) THE learned counsel for the revisionist has challenged the order inter alia on the ground that though the learned Additional sessions Judge, prima facie, has shown his satisfaction for framing of charges, but he has not discussed the material available before him for framing of charges. ( 4 ) THE learned counsel for the revisionist submitted that upon perusal of the order impugned it reveals that the learned additional Sessions Judge recorded the submissions of both the sides, but without discussing the same as well as without application of mind and by non speaking order he proceeded to frame the charge against him, whereas the revisionist is not named in the first Information Report. His name came in light only through the statement of confession of the main accused made after commission of offence. There is no evidence to establish that before commission of offence any evidence is available to corroborate the statement of confession of the accused and if it is not so, the statement of confession given by other conspirator after commission of offence, cannot be relied upon. ( 5 ) THE relevancy of the confession of one conspirator against other under trial for same offence has been given under Section 30 of the Evidence Act, 1872, which is reproduced here-in-below:-"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.- "offence", as used in this section, includes the abetment of, or attempt to commit the offence. " ( 6 ) THE learned counsel for the revisionist further submitted that the evidentiary value of confession made by one accused against another accused has been discussed by the honble Supreme Court in the case of State v. Nalini reported in 1999 Supreme Court cases (Cri) 691 : ( AIR 1999 SC 2640 ). The relevant paragraphs 96, 97, 107 108, 581 and 697 of the judgment are quoted here-in-below:- "96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used. 97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a coaccused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15 (1) of TADA, under what provision can a confession of one accused be used against another co-accused at all? It must be remembered that Section 15 (1) of TADA does not say that a confession can be used against a co-accused. It must be remembered that Section 15 (1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a co-accused, abettor or conspirator tried in the same case. 107. The first condition which is almost the opening lock of that provision is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English law the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English law "vide Sardar sardul Singh Caveeshar v. State of Maharashtra ). 108. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies in section 10 of the Evidence Aet is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10. 581. It is true that provision as contained in Section 10 is a departure from the rule of hearsay evidence. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10. 581. It is true that provision as contained in Section 10 is a departure from the rule of hearsay evidence. There can be two objections to the admissibility of evidence under section 10 and they are (1) the conspirator whose evidence is sought to be admitted against the co-conspirator is not confronted or cross-examined in court by the co-conspirator and (2) prosecution merely proves the existence of reasonable ground to believe that two or more persons have conspired to commit an offence and that brings into operation the existence of agency relationship to implicate co-conspirator. But then precisely under Section 10 of the Evidence Act, statement of a conspirator is admissible against a co-conspirator on the premise that this relationship exists. Prosecution no doubt, has to produce independent evidence as to the existence of the conspiracy for Section 10 to operate but it need not prove the same beyond a reasonable doubt. Criminal conspiracy is a partnership in agreement and there is in each conspiracy a joint or mutual agency for the execution of a common object which is an offence or an actionable wrong. When two or more persons enter into a conspiracy any act done by any one of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them. A conspirator is not, however, responsible for acts done by a conspirator after the termination of the conspiracy as aforesaid. The court is, however, to guard itself against readily accepting the statement of a conspirator against a co-conspirator. Section 10 is a special provision in order to deal with dangerous criminal combinations. Normal rule of evidence that prevents the statement of one co-accused being used against another under Section 30 of the Evidence Act does not apply in the trial of conspiracy in view of Section 10 of that Act. Section 10 is a special provision in order to deal with dangerous criminal combinations. Normal rule of evidence that prevents the statement of one co-accused being used against another under Section 30 of the Evidence Act does not apply in the trial of conspiracy in view of Section 10 of that Act. When we say that court has to guard itself against readily accepting the statement of a conspirator against a co-conspirator what we mean is that court looks for some corroboration to be on the safe side. It is not a rule of law but a rule of prudence bordering on law. All said and done, ultimately it is the appreciation of evidence on which the court has to embark. 697. In the cases referred to above, it was held that the confession of a co-accused is not evident as defined in Section 3 of the evidence Act and that Section 30 enables the court to take into consideration the confession of a co-accused to lend assurance to other evidence against the co-accused. The expression "may take into consideration" means that the use of the evidence of confession of an accused may be used for purposes of corroborating the evidence on record against the co-accused and that no conviction can be based on such confession. " ( 7 ) THE same proposition has been laid down by the Honble Supreme Court in the case of State (NCT of Delhi) v. Novjot Sandhu reported in 2005 (11) Supreme Court Cases 600 : ( AIR 2005 SC 3820 ) (para 11 ). The relevant paragraph 71 is reproduced here-in-below :- "71. Referring to the decisions in Mohd. Atik Case reported in 1998 (4) SCC 351 : ( AIR 1998 SC 1686 ) and Sardul Singh caveeshar reported in 1958 SCR 161 : ( AIR 1957 SC 747 ) Arijit Pasayat, J. speaking for a three Judge Bench in Mohd. Khalid v. State of W. B. reported in 2002 (7) SCC 334 , stated the legal position thus (SCC p. 360, para 35 ). "we cannot overlook the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Khalid v. State of W. B. reported in 2002 (7) SCC 334 , stated the legal position thus (SCC p. 360, para 35 ). "we cannot overlook the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10" ultimately, the test applied was whether any particular accused continued to be the member of the conspiracy after his arrest. Though the learned Judge stated that "similar view was expressed by this Court in State v. Nalini" we find no such statement of law in Nalinis case. However, this accidental slip does not make any difference. The law is thus well settled that the statements made by the conspirators after they are arrested cannot be brought within ,the ambit of Section 10 of the Evidence Act because by that time the conspiracy would have ended. If so, the statement forming part of the confessional statement made, to the police officer under section 32 (1) of POTA cannot be pfessed into service by the prosecution against the other co-accused. Thus, the endeavour to bring the confessional statement of the co-accused into the gamut of evidence through the route of Section 10 is frustrated by a series of decisions, starting from Mirza Akbar case (1940 ). " ( 8 ) ON the strength of the facts of the case as has been submitted by him as well as the law laid down by the Honble Supreme court on the point of evidentiary value of the statement of confession of co-accused, the learned counsel for the revisionist submitted that had all these factors being considered by the court below, which were placed before him at the time of considering the case to discharge the revisionist from offence, certainly he would have been discharged from offence. He drew the attention of this court towards the provisions of Section 227 of the Code of Criminal Procedure relating to discharge of accused. Section 227 of the Criminal Procedure Cose is reproduced here-in-below:-227. He drew the attention of this court towards the provisions of Section 227 of the Code of Criminal Procedure relating to discharge of accused. Section 227 of the Criminal Procedure Cose is reproduced here-in-below:-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. " ( 9 ) HE submitted that at the stage of consideration of the case for discharge from offence the accused as well as the prosecution has been provided opportunity of hearing to make submissions therein and only after considering the submission of the accused and prosecution the learned Judge has to show his satisfaction as to whether there is sufficient ground for proceeding against the accused or not. Therefore, in considering the material he has to apply his mind and after considering the material placed before him from both the sides he has to pass the specific order at this stage, but in the present case no finding has been recorded by the court below as to what was the material before him to be satisfied for proceeding with the case. He also drew the attention of this court towards the provisions of Section 228 of the Code of Criminal procedure relating tb framing of charge, which is reproduced here-in-below :- "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. " ( 10 ) IN the light of the aforesaid provisions he further submitted that after providing opportunity of hearing to the parties and after consideration of the material available before him he has to form his opinion that there is ground for presuming that the accused has committed an offence, whereas in the present case without doing any such exercise the learned Sessions Judge has acted like a post office and proceeded for framing of charge, which is in violation of the provisions of the Act. To substantiate his arguments he cited some decisions, which are as under:- (1) State of Karnataka v. Muniswamy and others reported in (1977) 2 Supreme Court cases 699 : ( AIR 1977 SC 1489 ) Paragraph 10 of the judgement is reproduced here-in-below:- "10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal V. D. D. Ghadigaonkar : ( AIR 1960 SC 1113 ) and Century Spinning and Manufacturing Co. v. State of Maharashtra : ( AIR 1972 SC 545 ) show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a persons liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchals case, Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 327 of the new Code contains an analogous power which is conferred on the Sessions Court. To an extent Section 327 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. (2) Union of India v. Prafulla Kumar Samal and another reported in (1979) 3 Supreme court Cases 4 : ( AIR 1979 SC 366 ). Relevant paragraph 10 is quoted here-in-below:-"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 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. (2) 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code 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. " (3) State of Maharashtra and others v. Som Nath Thapa and others reported in (1996) 4 Supreme Court Cases 659 : ( AIR 1996 SC 1744 ). The relevant paragraphs 28 to 32 are quoted here-in-below:-"28. Before adverting to what was stated in Antulay case (1986) 2scc 716 : ( AIR 1986 sc 2045 ) let the view expressed in State of karnataka v. L. Muniswamy (1977) 2 SCC 699 : ( AIR 1977 SC 1489 ) be noted. Therein, chandrachud, J. (as he then was) speaking for a three-Judge Bench stated (at SCR p. 119 : SCC p. 704 : (atp. 1493-94 of AIR) that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a persons liberty substantially, need for proper consideration of material warranting such order was emphasised. 29. What was stated in this regard in stree Atyachar Virodhi Parishad case Stree atyachar Virodhi Parishad v. Dilip Nathumal chordia (1989) 1 SCC 715 , which was quoted with approval in paragraph 78 of state of W. B. v. Mohd. Khalid (1995) 1 SCC 684 : ( AIR 1995 SC 785 ) is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. Khalid (1995) 1 SCC 684 : ( AIR 1995 SC 785 ) is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into. 30. In Antulay case Bhagwati, C. J. , opined, after noting the difference in the language of the three pairs of sections, that despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According to Shri jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31. Let us note the meaning of the word presume. In Blacks Law Dictionary it has been defined to mean "to believe or accept upon probable evidence" (emphasis ours ). In Shorter Oxford English Dictionary it has been mentioned that in law presume means "to take as proved until evidence to the contrary is forthcoming". Strouds Legal Dictionary has quoted in this context a certain judgment according to which "a presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged", (emphasis supplied ). In Law Lexicon by P. Ramanath Aiyer the same question finds place at p. 1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. " (4) Dilawar Balu Kurane v. State of maharashtra reported in (2002) 2 Supreme court Cases 135 : ( AIR 2002 SC 564 ). The relevant paragraph 12 of which is reproduced here-in-below:-"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under section 227 of the Code of Criminal Procedure, the settled position of law is that the judge while considering the question of framing the charges under the said section 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; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal ). " (5) Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra reported in (2008) 10 supreme Court Cases 394 : ( AIR 2008 SC 2991 ) The relevant paragraph 16 of which is quoted here in-below:-"15. " (5) Yogesh alias Sachin Jagdish Joshi v. State of Maharashtra reported in (2008) 10 supreme Court Cases 394 : ( AIR 2008 SC 2991 ) The relevant paragraph 16 of which is quoted here in-below:-"15. Chapter XVIII of the Code lays down the procedure for trial before the Court of session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him. "16. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record if unrebutted, make a conviction reasonably possible. (See State of Bihar v. Ramesh Singh : ( AIR 1977 SC 2018 )and Prafulla Kumar Samal : ( AIR 1979 SC 366 ). (6) State of Bihar v. Ramesh Singh reported in (1977) 4 Supreme Court Cases 39 ). The broad test to be applied is whether the materials on record if unrebutted, make a conviction reasonably possible. (See State of Bihar v. Ramesh Singh : ( AIR 1977 SC 2018 )and Prafulla Kumar Samal : ( AIR 1979 SC 366 ). (6) State of Bihar v. Ramesh Singh reported in (1977) 4 Supreme Court Cases 39 ). The relevant paragraph 4 of which is reproduced here-in-below:-"under Section 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter conies at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "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", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -. . . . . . . . . . . . . . . . . . (b) is exclusively triable by the court, he shall frame in writing a charge against the accused", as provided in Section 228. 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 true 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. 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 the 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. 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 evidence, if any, cannot show that the accused committed the offence, then 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. 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. " ( 11 ) ON the strength of the aforesaid decisions of the Honble Supreme Court the learned counsel for the revisionist submitted that the order impugned which is not followed with the reasons is without application of mind and the same is unsustainable. ( 12 ) DISPUTING the interpretation of the provisions of Sections 227 and 228 of the code of Criminal Procedure as given by learned counsel for the revisionist Mr. Bireshwar Nath, learned counsel for the c. B. I. Submitted that it is not disputed that at the stage of consideration of case for discharge the accused as well as the prosecution are provided opportunity of hearing, but so far as recording the reasons by the learned Sessions Judge is concerned that the necessary only when the learned Sessions judge discharges the accused. So far providing of opportunity to the revisionist is concerned, it is not in dispute that he was provided so. He further submitted that at this stage only the material provided by the prosecution becomes available for consideration of the learned Judge and upon consideration of record available before him, if he is satisfied that the accused is liable to be discharged, he has to record the reasons for doing so. But if he finds that there are sufficient material to proceed with the case, he can proceed with the matter without recording any reason, that completely depends upon his satisfaction because as soon as he considers to proceed with the matter he frames the charge and thereafter the accused has an ample opportunity to defend him. But if he finds that there are sufficient material to proceed with the case, he can proceed with the matter without recording any reason, that completely depends upon his satisfaction because as soon as he considers to proceed with the matter he frames the charge and thereafter the accused has an ample opportunity to defend him. He also supported his view with some decisions, which are referred here-in-below:- (1) Smt. Om Wati and another v. State, through Delhi Admn and others reported in air 2001 Supreme Court 1507 the relevant paragraphs 7 and 8 are quoted here-unden:-"7. Section 227 of the code 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; This court in Kanti Bhadra saha v. State of West Bengal (2000) 1 SCC 722 : (2000 AIR SCW 52 : AIR 2000 SC 522 :2000 Cri LJ 746) held that there is no legal requirement, that the trial Court should write an order showing the reasons for framing a charge. Tailing note of the burden of the pending cases on the Courts it was held (paras 11 and 12 of AIR, Cri. LJ): "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 Sec. 245. A per the first sub-section of s. 245, if a Magistrate after taking all the evidence considers that no case against the accused has been made out which if unrebutted would warrant his conviction, he shall discharge the accused. As per subsection (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 S. 227 of the Code ). 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 S. 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 Court 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 thpse falling within S. 37 of the Narcotic drugs and Psychotropic Substances Act, 1985. " 8. At the stage of passing the order in terms of S. 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 S. 228 of the Code. 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 S. 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. This Court in Stree atyachar Virodhi Parishad v. Dilip Nathumal chordia (1989) 1 SCC 715 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. " (2) Kanti Bhadra Shah and another v. State of W. B. reported (2000) 1 Supreme court Cases 722 : ( AIR 2000 SC 522 ). Relevant paragraph 11 of which is quoted below:-"11. 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 unrebutted 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. 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. " (3) State of Orissa v. Debendra Nath Padhi reported in AIR 2005 Supreme Court 359. The relevant paragraph 18 is quoted here-under:-"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced The scheme of the Code and object with which Section 227 was incorporated and Sections 207 and 207 (A)omitted have already been noticed. Further at the stage of framing of charge roving and. fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression hearing the submissions of the accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. " (4) State of M. P. v. S. B. Johari and others reported in AIR 20oo Supreme Court 665. The relevant paragraph 4 is reproduced here-in-below:-"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jiendra Bhimraj Bijjayya etc. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jiendra Bhimraj Bijjayya etc. reported in (1990) 4 SCC 76 : ( AIR 1990 SC 1962 : 1990 cri LJ 1869), after considering the provisions of Ss. 227 and 228, Cr. P. C. Court posed a question whether at the stage of framing of charge trial court should marshal the materials on the record of case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39 : ( AIR 1977 sc 2018 : 1977 Cri LJ 1606 ). Union of India v. Prafulla Kumar Samal (1979) 3scc 4: ( AIR 1979 SC 366 : 1979 Cri LJ 154) and Supdt. of Remembrance of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 : ( AIR 1980 SC 52 : 1979 Cri LJ 1390) and held thus:-"from the above discussion it seems well settled that at the Ss. 227 and 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. " ( 13 ) IN the light of the aforesaid decisions mr. Bireshwar Nath, learned counsel for the c. B. I. submitted that at the stage of discharge the learned Judge has not to evaluate the evidence. Only prima facie satisfaction of the Judge on the material available before him for proceeding with the case is sufficient to proceed against the accused. Bireshwar Nath, learned counsel for the c. B. I. submitted that at the stage of discharge the learned Judge has not to evaluate the evidence. Only prima facie satisfaction of the Judge on the material available before him for proceeding with the case is sufficient to proceed against the accused. The truth, veracity and effect of the evidence, which the prosecution proposes to adduce are not to be meticulously judged. But at the initial stage of making an order under sections 227 or 228, if there is a strong suspicion which leads the court to think that there is ground for presumption 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. He further submitted that in the case of Smt. Om Wati and another: ( AIR 2001 SC 1507 ) (supra) the Honble Supreme Court on this aspect reminded the High Court in the following manner :-"12. We allow this appeal by setting aside the order of the High Court and upholding the order of the trial court. We would again remind 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 protracting 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. " ( 14 ) IN the aforesaid background he submitted that there is no error in the order impugned and no interference is warranted by this court. ( 15 ) BY supporting the arguments of Mr. Bireshwar Nath, the learned counsel for the c. B. I. , Mr. I. B. Singh, learned counsel for the complainant submitted that there is no ambiguity in the provisions of Section 227 of the Code of Criminal Procedure. He submitted that upon reading the provisions of section 227 of the Cr. ( 15 ) BY supporting the arguments of Mr. Bireshwar Nath, the learned counsel for the c. B. I. , Mr. I. B. Singh, learned counsel for the complainant submitted that there is no ambiguity in the provisions of Section 227 of the Code of Criminal Procedure. He submitted that upon reading the provisions of section 227 of the Cr. P. C, it is obvious that recording of reasons is necessary only when the Judge discharges the accused otherwise if he forms an opinion on the basis of the material available before him that the accused has committed an offence, he frames charge under Section 228 (1) (b), and for framing of charge no reasons are required to be recorded. After framing the charge and before proceeding for taking evidence of the accused in his defence, there is one stage of acquittal under Section 232 of the Cr. P. C if after taking evidence of prosecution, examining the accused and hearing the prosecution and defence, on the point he considers that there is no evidence that the accused has committed the offence. At that stage also the accused has a right of being examined only without having any right of adducing evidence in his favour as the right of his defence and adducing evidence comes thereafter. He also invited the attention of this court again towards some decisions cited by the learned counsel for the revisionist. Those are as under:- (1) State of Bihar v. Ramesh Singh reported in (1977) 4 Supreme Court Cases 39 ( AIR 1977 SC 2018 ). (2) Union of India v. Prafulla Kumar Samal and another reported in (1979) 3 Supreme court Cases 4 : ( AIR 1979 SC 366 ) (supra ). (3) Yogesh Alias Sachin Jagdish Joshi v. State of Maharashtra reported in (2008) 10 supreme Court Cases 394 : ( AIR 2008 SC 2991 ) (supra ). ( 16 ) THE learned counsel for the complainant submitted that 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. ( 16 ) THE learned counsel for the complainant submitted that 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 the 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. It is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. ( 17 ) IN support of his aforesaid contentions he also relied upon the paragraphs 15 and 16 of the case of Yogesh alias Sachin jagdish Joshi v. State of Maharashtra (supra ). ( 18 ) ON the strength of the aforesaid submissions Mr. I. B. Singh, learned counsel of complainant submitted that by forming an opinion to proceed with the case on the basis of materials available before him after hearing the accused as well as the prosecution, the learned Judge has not committed any error. ( 19 ) AFTER considering the submissions of the learned counsels of the rival parties, I am of the view that the matter requires the determination of following two questions:- (I) What is the value of the statement of confession of one conspirator against another conspirator made after carrying out the object of the conspiracy ? (II) Whether the learned Judge is under obligation to record the reasons when he forms an opinion that there is sufficient ground for framing of charges ? (II) Whether the learned Judge is under obligation to record the reasons when he forms an opinion that there is sufficient ground for framing of charges ? ( 20 ) ANSWER of question No. (l): For determination of the first question, as has been sprout here-in-above, I am of the view that it requires evidence, which still has to be produced and considered by the trial court, therefore, I am of the view that it is premature stage for determination of this question as it touches the merit of the case, which can be adjudicated on the basis of the evidence produced during the course of trial, therefore, the same is left undecided, being premature. ( 21 ) ANSWER of question No. II: section 227 of the Code of Criminal Procedure provides that if upon consideration of the record of the case and the documents submitted therewith and after hearing the submission 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 doing so. ( 22 ) AT the stage of trial only the material collected during the course of investigation becomes available for the Judge for consideration of ground for proceeding against the accused and the accused has been provided opportunity of hearing only on the material available before the court and after hearing the submissions of both the sides if the learned Judge arrives at conclusion that the accused is liable to be discharged as there is no sufficient ground for proceeding against him, he has to record his reasons for doing so, but if he forms an opinion that there is sufficient ground for proceeding against the accused, he is not supposed to record any reason for proceeding further as for that limited purpose he has to form his opinion only on the basis of his prima facie satisfaction as to whether the case against an accused has been made out or not. For this very limited purpose the Honble supreme Court has laid down the guidelines in the cases of Union of India v. Prafulla kumar Samal and another : ( AIR 1979 SC 366 ) (supra), state of Maharashtra and others v. Som Nath Thapa and others : ( AIR 1996 SC 1744 ) (supra) and Dilawar Balu Karane v. State of Maharashtra : ( AIR 2002 sc 564 ) (supra ). ( 23 ) THE test to determine a prima facie case as has been held by the Honble Supreme Court in several cases depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application as at that stage of trial he is not supposed to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible. ( 24 ) IN the case of State of Bihar v. Ramesh singh : ( AIR 1977 SC 2018 ) (supra), it has been held by the Honble Supreme Court that 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. But at the initial stage if there is the 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. ( 25 ) IN the case of Smt. Om Wati and another v. State, through Delhi Admn. and others : ( AIR 2001 SC 1507 ) (supra) the Honble supreme Court has held that no reasons are required to be recorded when the charges are framed against the accused persons. ( 25 ) IN the case of Smt. Om Wati and another v. State, through Delhi Admn. and others : ( AIR 2001 SC 1507 ) (supra) the Honble supreme Court has held that no reasons are required to be recorded when the charges are framed against the accused persons. ( 26 ) THE Honble Supreme Court in the case of Kanti Bhadra Shah and another v. State of W. B. : ( AIR 2000 SC 522 ) (supra)held that there is no legal requirement that the trial court should write the order showing the reasons for framing of charge, meaning thereby that if he has to frame the charge he may do so without recording his reasons for showing why he framed the charge. It has further been held that if there is no legal requirement that the trial court should write an order showing the reasons for framing of charge, by which the trial courts are already burdened, we further burden with such an extra work and it is quite unnecessary to write detailed orders at the stages of issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. The Honble Supreme Court ultimately held that at the stage of passing the order in terms of Section 227 of the Code of Criminal Procedure, the court has merely to peruse the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused and if upon consideration the court is satisfied that prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the code of Criminal Procedure. ( 27 ) IN the case of Kanti Bhadra Shah and another v. State of W. B. (supra) the Honble supreme Court held that 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, but if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. ( 28 ) THE arguments of the learned counsel for the revisionist that once accused has been provided opportunity of hearing at the stage of discharge, his submission must be dealt with by speaking order followed with reasons has already been met with by the honble Supreme Court in the case of State of Orisssa v. Debendra Nath Padhi : ( AIR 2005 SC 359 ) (Supra) as has been held that the provision about hearing of submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression hearing the submission of accused cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police. ( 29 ) IN the case of Niranjan Singh Karam singh Punjabi etc. v. Jiendra Bhimraj bijjayya etc. reported in (1990) 4 SCC page 76 : ( AIR 1990 SC 1962 ) the Honble Supreme court after considering the provisions of Sections 227 and 228 Cr. P. C. posed a question whether at the stage of framing of charge, trial court should marshal the materials on the record of case as he would do on the conclusion of the trial? The court held that at the stage of framing the charge inquiry must necessarily be limited to deciding whether the facts emerging from such materials constitute the offence with which the accused could be charged. The trial court may peruse the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The trial court may peruse the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. ( 30 ) THE Honble Supreme Court in the case of State of Maharashtra v. Som Nath thapa : ( AIR 1996 SC 1744 ) (Supra) (Division bench of three Judges) after considering the decision of another co-ordinate bench of the Honble Supreme Court, rendered in the case of State of Karnataka v. L. Muniswamy and others (1977) 2 SCC 699 : ( AIR 1977 SC 1489 ) held that at the stage of framing of charge the test of prima facie case has to be applied and further held that better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. ( 31 ) IN the light of the aforesaid decisions of the Honble Supreme Court, as I gathered the conclusion of the Honble Supreme Court on this very point, I am of the view that it is not necessary for the Judge to record the reasons for framing of charge. The reasons are required to be recorded only when the judge discharges the accused. Upon perusal of the order impugned I find that before forming his prima facie opinion for framing of charge, the learned Judge has taken note of the material provided by the prosecution as well as the submission of the learned counsel for the accused, therefore, I am of the view that the order impugned does not suffer from error. ( 32 ) THE revision is dismissed. Revision dismissed. .