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2015 DIGILAW 532 (PAT)

Ajit Kumar Sinha @ Kaju Yadav v. State of Bihar

2015-04-01

ANJANA PRAKASH

body2015
ORAL ORDER 1. The Petitioner seeks quashing of the order of non-discharge dated 25.07.2014 passed by the Ad hoc Additional Sessions Judge, II, Nawada, in Pakari Barawan P.S. Case No.94 of 2011 (Sessions Trial No.120 of 2014/49 of 2014). 2. The case of the prosecution is that when the Informant was proceeding towards Lakhiserai in his car along with others they were forcibly stopped on account of an obstruction. When the car slowed number of miscreants appeared with arms and looted them as also others who had stopped on account of the obstruction. 3. The Petitioner is not named in the First Information Report. His name transpired in the confessional statement of the co-accused and himself before the police. Submission is that since confessional statement before the police is not admissible in law he should be discharged. This Court had dismissed the application on 10.11.2014 but felt the necessity of examining this point in some detail because such an argument is often advanced and Courts require some discussion on it. 4. Before I proceed, I would like to cite some leading decisions on the point of materials required to frame charge/discharge. These decisions are relevant to the extent that they define powers of a Court at the stage of charge, and, hence required to be kept in mind, as guiding principles. 5. The Hon’ble Supreme Court in the case of State of Bihar v. Ramesh Singh (1977) 4 SCC 39 Page 41-42 paragarah 4 considered the issue of standard of test to be applied by the courts which is followed till date without deviation. “4. 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 comes 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. 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 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 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. 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. 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.” 6. In the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 , para 21 the Apex Court summarized the principles in the following manner: “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that 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. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 24. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 24. At the stage of framing of charge under Section 228 CrPC or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other. 7. In the case of Onkar Nath Mishra Vs. State (NCT of Delhi) (2008) 2 SCC 561 paragraph 11 the Apex Court explained as follows: “11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” 8. In State of Maharastra Vs. Som Nath Thapa case (1996) 4 SCC 659 paragraph 32 the same legal position was reiterated and summed up as below: “32. … 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. In State of Maharastra Vs. Som Nath Thapa case (1996) 4 SCC 659 paragraph 32 the same legal position was reiterated and summed up as below: “32. … 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. 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.” NOTE DO NOT EMPHASIZE 9. In State of M. P. Vs. Mohanlal Soni (2000) 6 SCC 338 paragraph 7 the Apex Court said; “7. The crystallised judicial view is that at the stage of framing 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 evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 10. In the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , the Apex Court considered the difference of approach required at the stages of Section 227 and 228 and held that while discharging a definite opinion of a court is required, whereas while proposing to charge its belief can be tentative and even weaker than a prima facie satisfaction. 11. On perusing the aforesaid decisions one finds that the Apex Court in its decisions explains the scheme of Sections 226 /227/228 Cr.P.C. and that at stage of charge, a Court is not to test the truth, veracity, and effect of evidence. It is only to see whether a prima facie case is made out on the broad probabilities of the case and not test the probative value of the material or that, there is sufficient ground for conviction. 12. However, the aforesaid decisions do not help a court in situations like the present one, when the issue is of availability of only inadmissible evidence. 12. However, the aforesaid decisions do not help a court in situations like the present one, when the issue is of availability of only inadmissible evidence. In an attempt to reach a reasonable conclusion I would like to understand the scheme of Sections 226, 227 and 228 Cr.P.C. in the backdrop of Evidence Act. Since it is Evidence Act which controls the manner in which evidence is to be led the Code of Criminal Procedure has to be understood taking its aid, and not independent of it. 13. To begin with the Code of Criminal Procedure, one observes that it is at the stage of Charge that for the first time, both the Prosecution and an Accused have an audience with the Trial Judge and the relevant provisions are Sections 226 /227/ 228 quoted below. “226. Opening case for prosecution.-- When the accused appears or is brought before the Court in pursuance of a commitment of the case under section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. 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 ……….; (b) is exclusively triable by the court, he shall frame in writing a charge against the accused. (2) ……..” 14. Thus we see that whereas Section 226 defines the responsibility of the Prosecution at the stage of charge, Sections 227 and 228 define that of the Courts. On a careful reading of Section 226, one finds that at that stage the prosecution is to open its case by describing the charge and by what ‘evidence’ it proposes to prove the ‘guilt’ of an accused. The conclusive words ‘evidence’ and ‘guilt’ are to be noted. On a careful reading of Section 226, one finds that at that stage the prosecution is to open its case by describing the charge and by what ‘evidence’ it proposes to prove the ‘guilt’ of an accused. The conclusive words ‘evidence’ and ‘guilt’ are to be noted. When we read Sections 227/ 228 Cr.P.C which have to be read in conjunction, we find the clinching words ‘evidence’ and ‘guilt’ have been omitted. Instead Legislature in its wisdom introduces the words ‘records of the case’ and ‘documents’ not ‘evidence’ and nor that the Court has to form an opinion as to his ‘guilt’ u/s 228 but merely form an opinion that there is ground for presuming the accused has committed an offence. Under Section 227 Cr. P. C. if he considers there is ‘not sufficient ground for proceeding’ against an accused, he is mandated to discharge him. On the other hand under Section 228 Cr. P. C. if there is ground for ‘presuming that the accused has committed an offence’ he shall frame charges. We thus find Legislature has not confined the Courts on forming such opinion solely on ‘evidence’ and instead left it to its discretion for such opinion on the materials and documents available. 15. Since I have sought to resolve the issue in the light of the Evidence Act, let us also examine and delve into the relevant provisions of Evidence Act. For this reason, it is essential to have a re-look at Section 3 which defines ‘evidence’ as ; “Evidence”.—“Evidence” means and includes— (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence. [Emphasis Mine] 16. Sections 59 and 60 Evidence Act further lay down the procedure as to how oral evidence has to be proved and Sections 61 to 90 in respect of documentary evidence. It is worth noting here that there is no provision in the Code of Criminal Procedure which empowers a Court to assess and reject evidence on any ground. Sections 59 and 60 Evidence Act further lay down the procedure as to how oral evidence has to be proved and Sections 61 to 90 in respect of documentary evidence. It is worth noting here that there is no provision in the Code of Criminal Procedure which empowers a Court to assess and reject evidence on any ground. It is in the Evidence Act that Section 136 grants such a power to a trial judge at the stage of trial, to decide as to the admissibility of the evidence proposed to be adduced and permit the same only if is relevant. Section 136 Evidence Act is quoted below; “136. Judge to decide as to admissibility of evidence.----When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. [Emphasis Mine] 17. Thus as I understand it, it is only at the stage of trial that a Court has powers to prevent or question irrelevant evidence. Its relevance or admissibility cannot be determined by a Court at the stage of charge. At this stage a trial Judge cannot give a finding as to whether a certain material is inadmissible, irrelevant evidence and leave it out of consideration on such ground. Even at the risk of sounding perverse I would say that even if, material, such as confessional statement, may not be strictly evidence as per Evidence Act, nevertheless it is material upon which a Court can form an opinion that an accused has committed an offence. 18. Even at the risk of sounding perverse I would say that even if, material, such as confessional statement, may not be strictly evidence as per Evidence Act, nevertheless it is material upon which a Court can form an opinion that an accused has committed an offence. 18. To lead a further discussion let us look at the problem from another angle. As we know Chapter VII Evidence Act defines burden of proof and that onus in a criminal trial is on the prosecution to prove its case beyond all reasonable doubt. Whether the prosecution will discharge its onus by proposing to adduce direct / indirect or circumstantial evidence is for it to decide only at the stage of trial. It cannot be burdened with such responsibility at a pretrial stage. Also, since it would not be possible for a Court, at the stage of charge, to foresee, or control the manner in which the prosecution will prove the relevance of a certain material and translate it into evidence during trial, it would be highly improper for it to abort the trial without affording the prosecution such an opportunity in the manner permissible. However, I must be quick to explain that it does not mean that a Court is to act as a post office. It has certainly to satisfy itself on the point that there are sufficient materials on record to put an accused on trial as repeatedly laid down in various decisions some of which are quoted above. 19. In the result, since the application has already stood dismissed by an order dated 10.11.2014 the aforesaid reasons be read in the order.